UMass Memorial Medical Center

National Labor Relations Board - Board Decisions

Feb 20, 2007

349 N.L.R.B. 369 (N.L.R.B. 2007)

UMASS MEMORIAL MEDICAL CENTER
349 NLRB No. 35
369
UMass Memorial Medical Center and International
Association of EMTS and Paramedics, Local 95,
SEIU/NAGE, Petitioner. Case 1–RC–22044
February 20, 2007
DECISION ON REVIEW AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On August 29, 2006, the Regional Director issued a
Decision and Direction of Election in this proceeding,
directing an Armour-Globe1 self-determination election
among the Employer’s per diem EMT/Intermediates and
EMT/Paramedics who have worked an average of 4
hours per week during the calendar quarter immediately
preceding the date of the election.2
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
the Employer filed a timely request for review of the
Regional Director’s Decision and Direction of Election,
arguing that the Petitioner waived its right to seek a self-
determination election to include the petitioned-for em-
ployees in the existing unit; that the Board should extend
to the self-determination election context its policy bar-
ring unit clarification petitions filed during the term of a
contract and covering the disputed classifications; and
that contract bar principles should apply to self-
determination elections. The Petitioner filed an opposi-
tion to the Employer’s request for review. On October
11, 2006, the Board3 granted the Employer’s request for
review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
We have carefully considered the entire record in this
case, including the Employer’s brief on review, and con-
clude that the Regional Director properly directed a self-
determination election. Therefore, we affirm the deci-
sion and remand this case to the Regional Director for
further appropriate action.
I. FACTUAL BACKGROUND
The Employer provides ambulance transportation ser-
vices in the Worcester, Massachusetts area. The Peti-
tioner represents4 a unit of the Employer’s full-time and
regular part-time EMT/Intermediates and EMT/Para-
medics.5 The parties’ collective-bargaining agreement,

1 See Armour & Co., 40 NLRB 1333 (1942); Globe Machine &
Stamping Co., 3 NLRB 294 (1937).
2 The Employer does not request review of the Regional Director’s
voter eligibility determination.
3 Members Schaumber and Kirsanow; Member Walsh dissenting.
4 The record is silent as to when and how the Petitioner first became
the bargaining representative of the unit employees.
5 At the time of the hearing the Employer did not employ any
EMT/Intermediates, and the unit consisted entirely of EMT/Paramed-
ics.
with effective dates from January 19, 2006, though June
30, 2009, contains a recognition clause specifically ex-
cluding dispatchers, supervisory, managerial, and per
diem employees. It is undisputed, however, that the
agreement does not contain a provision in which the Peti-
tioner explicitly agrees not to seek to represent any em-
ployees who are excluded from the bargaining unit it
currently represents.
In addition to the full-time and regular part-time
EMT/Intermediates and EMT/Paramedics, the Employer
employs the petitioned-for per diem employees. The per
diem employees perform the same job duties as the full-
time and regular part-time EMT/Intermediate and
EMT/Paramedic employees who are included in the unit.
The parties began negotiating the existing contract in
late April or May 2005, and conducted bargaining ses-
sions two to four times per month through January 2006.
According to the Employer, the parties discussed per
diem employees on two occasions during the course of
their negotiations: once in establishing that per diem em-
ployees would be utilized to cover gaps in unit employ-
ees’ schedules, and once when the Petitioner took the
position that the Employer should not hire per diem em-
ployees who did not work frequently enough to maintain
familiarity with changes in procedures and policies. The
Petitioner never requested recognition of the per diem
employees in the course of the bargaining that resulted in
the contract.
On August 7, 2006, the Petitioner filed the instant peti-
tion seeking a self-determination election in which the
per diem employees would be permitted to vote on
whether or not they wish to be included in the existing
unit.
II. ANALYSIS
An Armour-Globe self-determination election permits
employees sharing a community of interest with an al-
ready-represented unit of employees to vote on whether
to join the existing unit. See NLRB v. Raytheon Co., 918
F.2d 249, 251 (1st Cir. 1990). In Briggs Indiana Corp.,
63 NLRB 1270 (1945), however, the Board recognized a
restriction on a union’s right to petition for an election to
represent a specific group of employees, finding enforce-
able a union’s contractual agreement not to represent
those employees during a collective-bargaining agree-
ment’s term. Subsequently, in Cessna Aircraft Co., 123
NLRB 855, 856 (1959), the Board established that the
Briggs Indiana rule applies “only where the contract it-
self contains an express promise on the part of the union
to refrain from seeking representation of the employees
in question or to refrain from accepting them into mem-
bership.” Thus, a promise not to seek to represent a par-
ticular group of employees may not be implied by way of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD370
an explicit exclusion from a contractual unit or on the
basis of an “alleged understanding” between the parties
during their negotiations. Cessna Aircraft, supra at 856.
In Women & Infants’ Hospital of Rhode Island, 333
NLRB 479, 479 (2001), the Board applied Cessna Air-
craft, supra, to find that contractual language specifically
excluding respiratory therapists from a technical employ-
ees unit did not bar the union from petitioning for an
Armour-Globe election in a unit of respiratory therapists.
Because the union never made an express promise not to
seek to represent the respiratory therapists, the Board
held, the regional director appropriately directed a self-
determination election among members of that group.
Women & Infants’ Hospital, supra at 479.
Women & Infants’ Hospital, supra, squarely controls
the outcome here. When negotiating the contract, the
Petitioner never agreed that it would not, during the term
of the contract or at any other time, seek to include the
per diem employees in the unit. Rather, the Petitioner
agreed only that the per diem employees were excluded
from that contract. As a contract clause excluding a par-
ticular group of employees from its coverage does not
bar a union from seeking to represent those employees
via a self-determination election during the contract’s
term, the Petitioner never waived its right to seek a self-
determination election among the petitioned-for employ-
ees. Women & Infants’ Hospital, supra at 479.
Allowing the petitioned-for employees to vote in a
self-determination election does not, as our dissenting
colleague maintains, “negate the choice expressed in the
contract.” In ratifying the contract, the employees never
expressly voted to preclude the per diem employees from
joining the unit for the duration of the contract’s term.
Further, the Employer could have sought an agreement
from the Petitioner not to represent the per diem employ-
ees during the contract’s term, but did not do so. Absent
any such agreement on the part of the Petitioner, prevent-
ing the petitioned-for employees from voting in a self-
determination election would serve only to contravene
the freedom of self-organization that Section 7 is de-
signed to protect.
Contrary to our dissenting colleague’s view, the fact
that Women & Infants’ Hospital supra, involved an acute
care facility does not render the Board’s holding in that
case any less applicable to the facts here. The Board in
Women & Infants’ Hospital, supra, did not even men-
tion—let alone rely upon—the acute care facility context
in permitting the excluded group to vote in a self-
determination election. Rather, the Board’s rationale in
Women & Infants’ Hospital, supra, focused on the fact
that the union never expressly promised that it would not
seek to represent the respiratory therapists. Notably, the
Employer here did not take the position espoused by our
dissenting colleague that Women & Infants’ Hospital,
supra, is distinguishable on the ground that the case in-
volved an acute care facility.
In insisting that Women & Infants’ Hospital, supra,
addresses only a union’s right to “seek to represent” an
excluded classification and not its right to include that
classification’s employees in the existing unit, our dis-
senting colleague ignores the fact that the issue before
the Board in that case was, as here, whether the regional
director properly directed a self-determination election
among members of the excluded classification. The ef-
fect of the Board’s decision in Women & Infants’ Hospi-
tal, supra, thus was to allow the petitioned-for employees
to vote on whether they wished to be represented in the
existing unit—the same end result as our decision today
will yield.
Additionally, we are not persuaded by the Employer’s
argument that the Board should apply to the self-
determination context its policy barring unit clarification
petitions filed during the term of a contract that covers
the classifications in question.6 A self-determination
election is meaningfully distinct from an accretion fol-
lowing a unit clarification petition, as a self-
determination election affords the employees the oppor-
tunity to vote as to whether or not they wish to be in-
cluded in the existing unit.
We also reject the Employer’s assertion that the peti-
tion should be dismissed by way of the Board’s contract
bar doctrine.7 The Board has long held that, following a
self-determination election whereby a new group of em-
ployees joins a unit already covered by a collective-
bargaining agreement, the employer must bargain as to
the appropriate contractual terms to be applied to the
unit’s new group of employees. Federal Mogul Corp.,
209 NLRB 343 (1974). We find that Federal Mogul,
supra, properly balances the concerns of preventing uni-
lateral application of contract terms to a group of em-
ployees who were not represented when the collective-
bargaining agreement was negotiated, on the one hand,
and allowing for employee free choice, on the other.

6 Under Edison Sault Electric Co., 313 NLRB 753, 753 (1994), a
unit clarification petition submitted during the term of a contract that
specifically addresses the disputed classification will be dismissed
unless the moving party reserved during the course of bargaining its
right to file the petition.
7 Pursuant to the contract bar doctrine, absent exceptional circum-
stances “the Board will not entertain a representation petition seeking a
new determination of the employees’ bargaining representative during
the middle period of a valid outstanding collective-bargaining agree-
ment of reasonable duration.” Hexton Furniture Co., 111 NLRB 342,
344 (1955).
UMASS MEMORIAL MEDICAL CENTER 371
Accordingly, we find that the Regional Director prop-
erly directed a self-determination election.
ORDER
The Regional Director’s Decision and Direction of
Election is affirmed, and the case is remanded to the Re-
gional Director for further appropriate action.
MEMBER SCHAUMBER, dissenting
The Petitioner and Employer executed a collective-
bargaining agreement that excluded per diem EMTs from
the unit of the Employer’s regular EMTs. A short time
later, the Petitioner sought to skirt that agreement by fil-
ing a petition for a self-determination election among the
per diem EMTs. The Employer argued that the Peti-
tioner’s agreement to exclude the per diem EMTs from
the unit barred the self-determination election. The Re-
gional Director rejected that argument and directed a
self-determination election. For the reasons that follow, I
would hold the Petitioner to its contractual commitments
and would dismiss the election petition.
I agree that where a union expressly promises not to
“represent” certain categories of employees during the
term of an agreement, the union may not file a petition
with the Board seeking to represent those employees
during that period. See, e.g., Briggs Indiana, 63 NLRB
1270 (1945). I also agree that unit exclusionary language
is insufficient to establish an express promise not to rep-
resent the excluded employees. Cessna Aircraft Co., 123
NLRB 855 (1959). In self-determination elections, how-
ever, employees do more than choose whether to be rep-
resented by a particular union. Employees choose
whether they will become part of an existing bargaining
unit. Thus, the question is not merely one of representa-
tion by a particular union, but rather one of inclusion in a
particular unit. Accordingly, the issue presented here is
whether the exclusionary language in the contract bars
the Petitioner from seeking to include the per diem
EMTs in the existing unit of regular EMTs. In my view,
it does.
Here, the Employer’s regular EMTs exercised their
Section 7 right to self-organization and elected, through
the Petitioner, not to include the per diem EMTs in the
unit. That was the express agreement embodied in the
contract the parties voluntarily entered. Were the Board
to now order a self-determination election among the per
diem EMTs, we would negate the choice expressed in the
contract and effectively elevate the Section 7 rights of the
per diem EMTs over those of the regular EMTs. I see no
basis in law or policy for such action.
The Board’s decision in Women & Infants’ Hospital of
Rhode Island, 333 NLRB 479 (2001) (denying review of
regional director’s decision directing a self-determination
election) is not controlling.1 Significantly different pol-
icy considerations were at issue there. First, that case
involved an acute care hospital, whereas this case does
not. Congressional policy prevents the proliferation of
units in acute care settings. In Women & Infants’ Hospi-
tal, placing the respiratory therapists in the existing tech-
nical employees’ unit, as opposed to a separate unit, was
required to be in conformity with the Congressional ad-
monition against unit proliferation. Because UMass
Memorial Medical Center is not an acute care hospital,
placing the per diem EMTs in the same unit as regular
EMTs does not raise the same concern. Second, the em-
ployer in Women & Infants’ Hospital did not take the
position, as the Employer here does, that the exclusion-
ary language in the contract bars the union from seeking
to include the respiratory therapists in the existing tech-
nical employees unit. The issue in Women & Infants’
Hospital was whether the exclusionary language barred
the union from representing those employees in any
unit—a different issue than the one presented here.
Thus, Women & Infants’ Hospital addresses circum-
stances where the employer relies on unit exclusionary
language to bar employees from selecting the representa-
tive of their choice. It does not apply to circumstances
where the issue is whether such language bars employees
from selecting their unit of choice.2

1 In Women & Infants’ Hospital, the union and employer entered
into a collective-bargaining agreement that specifically excluded respi-
ratory therapists from a bargaining unit of technical employees. There-
after, the union filed a petition for a self-determination election among
the respiratory therapists, seeking to represent those employees. Id.
The employer argued that the exclusionary language in the contract
barred the union from representing the respiratory therapists. The
Board denied review of the regional director’s decision, which applied
long-standing Board precedent and found that the exclusionary lan-
guage did not bar a self-determination election among the respiratory
therapists because the union had not expressly “waived its right to
represent” those employees. Id. at 479–480.
2 The Employer’s argument here is of this second type. The Em-
ployer contends that the exclusionary language in the contract bars the
per diem EMTs from inclusion in the unit of regular EMTs. Indeed, the
Employer does not argue that the per diem EMTs cannot select the
Petitioner as their bargaining representative, and concedes that the
Petitioner is free to petition for an election among the per diem EMTs
in a separate unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD372
In short, in my view, the exclusionary language in the
contract bars a self-determination election among the per
diem EMTs seeking to include them in the existing unit
of regular EMTs.3 Accordingly, I would dismiss the
petition.

3 I would have no such concerns if the Petitioner filed an election pe-
tition seeking to represent the per diem EMTs in a separate unit.