W. A. Foote Memorial Hospital, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1977

230 N.L.R.B. 540 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. A. Foote Memorial Hospital, Inc.1 and Mr.
Barry Butterfield, Petitioner and Local 547,
International Union of Operating Engineers, AFL-
CIO. Case 7-RD-1329
June 27, 1977
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY MEMBERS PENELLO, MURPHY, AND
WALTHER
On May 19, 1976, the Regional Director for Region
7 issued a Decision and Direction of Election in this
proceeding in which he directed that an election be
held among the maintenance employees at the
Employer's Foote West facility. 2
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board's Rules and
Regulations, Series 8, as amended, Local 547,
International Union of Operating Engineers, AFL-
CIO (hereinafter the Union), filed a timely request
for review of the Regional Director's decision on the
ground that he improperly found that this single-
location unit was appropriate for a decertification
election.
On July 8, 1976, the National Labor Relations
Board granted the request for review. Thereafter,
attorney for the Petitioner filed a petition to set aside
the stay and for an immediate election, and the
attorney for the Union filed an answer to the
petition.
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 and makes the following findings:
In August 1975, W. A. Foote Memorial Hospital, a
health care institution located in Jackson, Michigan,
executed a purchase agreement to acquire Mercy
Hospital. Under this agreement, the actual transfer
of ownership to Foote Hospital, the Employer in the
instant case, occurred on January 1, 1976. In
addition, W. A. Foote Memorial Hospital was
renamed Foote East and Mercy Hospital was
renamed Foote West.
I The Employer's name appears as amended at the hearing.
2 The Regional Director directed that an election be held among all of
the operating engineers, boiler operators, refrigeration operators, firemen,
and maintenance department employees employed by the Employer at its
facility which is located at 524 Lansing Avenue, Jackson, Michigan; but
excluding clerical employees, professional employees, professional trainees,
guards, and supervisors as defined in the Act, and all other employees.
3 The Regional Director relied on the following cases: Germantown
Development Co., Inc., 207 NLRB 586, 587 (1973); Combustion Engineering,
Inc., 195 NLRB 909 (1972); Woolwich Inc., 185 NLRB 783 (1970); Pullman
Industries, Inc., 159 NLRB 580(1%966), for that proposition.
230 NLRB No. 88
At the time of the transfer, the Union represented
the maintenance unit at Foote East and had executed
a 2-year collective-bargaining agreement with the
Employer in June 1975 that would expire on June 30,
1977. After the sale of Mercy Hospital to Foote
Hospital, the Union sought recognition as the
representative of the Foote West maintenance
employees, contending that the collective-bargaining
agreement required that the Foote West unit be
merged with the Foote East unit. In accordance with
their contract, the Employer and the Union submit-
ted the issue to arbitration. An arbitrator rendered a
decision on January 19, 1976, which found that the
Foote West unit should be included in the existing
bargaining unit. On the basis of the arbitration
award, the Employer recognized the Union as the
collective-bargaining representative for the Foote
West employees as part of the Foote East unit.
Thereafter, the Petitioner, a member of the Foote
West maintenance department, filed a petition to
decertify the Union as the bargaining agent for a unit
of the Foote West employees.
The Regional Director directed an election among
the maintenance employees at the newly acquired
Foote West location. He concluded that the Board
retains its power to determine whether nonconsent-
ing employees constitute an accretion to an existing
bargaining unit, notwithstanding an arbitration
award to the contrary.3 The Regional Director then
found that no accretion had occurred,4 that the
Foote West unit was instead a separate appropriate
unit, and that a decertification election should be
held in that unit.
The Union contends that the Regional Director
improperly ordered an election to be held in the
Foote West unit because that unit is an accretion to
the existing contract unit.5
Based upon the entire record, we find that the
Regional Director improperly directed this decertifi-
cation election at Foote West as a separate unit
because the decertification petition is not coextensive
with the currently recognized contract unit. The
Employer had recognized the Union as the bargain-
ing representative of the maintenance employees in
the Foote West and Foote East locations as one unit.
Section 9(c)(l)(A)(ii) of the Act restricts the filing of
a petition and the subsequent issuance of any
4 In reaching this conclusion the Regional Director found that the
following factors existed: a lack of interchange or transfer of employees
from the existing unit to the newly acquired unit; the separate location of
the facilities; the separate immediate supervision for the workers; the
dissimilarity in wages and fringe benefits; and the different bargaining
history of the two units.
5 The Union stresses that both units have the same employer, the same
personnel policies, the same administrative staff, the same payroll depart-
ment, and the same hiring agency; that they perform the same functions
except where already consolidated; and that an interchange of personnel
will occur in the units.
540
W. A. FOOTE MEMORIAL HOSPITAL
direction of a decertification election in the same unit
as that in which the union is recognized or certified. 6
As an alternative position, however, the Petitioner
indicated at the hearing that he would be amenable
to having the Board direct a decertification election
in the overall contract unit. The Petitioner's showing
of interest is adequate for that unit and we find that
the overall maintenance unit is an appropriate one.
The Petitioner, however, filed the petition during the
midterm of the collective-bargaining agreement that
was in effect between the Union and the Employer.
Thus, the contract barred the petition as of the date it
was filed. In Trinity Lutheran Hospital, Menorah
Medical Center, St. Joseph Hospital and Research
Hospital & Medical Center, 218 NLRB 199 (1975), we
determined that the "open period" for a petition for
an election involving a health care institution within
the meaning of Section 2(14) of the Act is the period
from 90 to 120 days before the expiration date of an
existing collective-bargaining agreement. We have
also held, however, that "a petition will not be
dismissed, even though prematurely filed, if a hearing
is directed despite the prematurity of the petition and
the Board's decision issues on or after the 90th day
Sec. 9(cX)(XAXii) provides for an election where an employee or group
of employees "assert that the individual or labor organization, which has
been certified or is being recognized by their employer as the bargaining
representative, is no longer a representative as defined in section 9(a).
7 Royal Crown Cola Bottling Co. of Sacramento, 150 NLRB 1624, 1625
(1965); see also Deluxe Metal Furniture Company, 121 NLRB 995, 999
(1958); Mason d Hanger-Silas Mason Company, 142 NLRB 699. 701, fn. 3
(1963).
preceding the expiration date of the contract." 7
While the cases cited supra at footnote 7 deal with
nonhealth care institutions, their rationale is applica-
ble here. Accordingly, as all the requisites set out in
Royal Crown Cola, supra, are present here, and our
decision will issue after the 120th day preceding the
expiration date of the parties' contract, we shall not
dismiss this petition but shall direct an election.
The following employees constitute an appropriate
unit for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act: 8
All operating engineers, boiler operators, fire-
men, and maintenance department employees
employed by the Employer at its facilities located
at 524 Lansing Avenue and 205 North East
Avenue, Jackson, Michigan; but excluding cleri-
cal employees, professional employees, profes-
sional trainees, guards and supervisors as defined
in the Act, and all other employees.
[Direction of Election and Excelsior footnote
omitted from publication.]
8 Although Members Penello and Walther would not find a hospital
maintenance unit such as involved herein appropriate in an initial attempt
for certification (see Member Penello's concurring opinion in St. Vincent's
Haospita 223 NLRB 638 (1976)), they will not disturb existing units in the
health care industry so long as they are not proscribed by the Act.
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