Methodist Home v. N.L.R.B.
| Decision Date | 19 April 1979 |
| Docket Number | No. 78-1075,78-1075 |
| Citation | 596 F.2d 1173 |
| Parties | 101 L.R.R.M. (BNA) 2139, 86 Lab.Cas. P 11,269 The METHODIST HOME, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Eric C. Schweitzer, Greenville, S. C. (Lewis T. Smoak, Ogletree, Deakins, Smoak & Stewart, Greenville, S. C., on brief), for petitioner.
Christine Weiner Peterson, N. L. R. B., Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate
Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Peter M. Bernstein, N. L. R. B., Washington, D. C., on brief), for respondent.
Before WINTER, RUSSELL and WIDENER, Circuit Judges.
The Methodist Home, a non-profit health-care facility in Orangeburg, South Carolina, petitions to review and set aside an order of the National Labor Relations Board; the Board in turn cross-petitions for enforcement. The Board, in the order challenged, found that the petitioner had violated § 8(a)(5) and (1) of the National Labor Relations Act, by refusing to bargain with the Union (Local 579, AFL-CIO, CLC, Service Employees International Union), which had been certified by the Board following a representation election. The petitioner did not deny its refusal to bargain but justifies its refusal to bargain with a claim of invalidity in the certification of the Union as the bargaining agent for its employees. We deny enforcement and remand for an evidentiary hearing.
The representation proceedings began with the filing of a petition by the Union to be certified as the bargaining agent for the petitioner's employees. Following the filing of this petition, the Union and the petitioner agreed on a stipulation for a representation election in which the charge nurses, among others, employed by the petitioner were expressly excluded from the bargaining unit. This stipulation was approved by the Regional Director of the Board. Before the election was held under the stipulation, however, the petitioner filed a Motion for Collateral Investigation of the Showing of Interest. In this motion, it alleged the "(c)harge nurses" were "supervisors within the meaning of Section 2(11) of the Act" and that several of such supervisors had improperly "cooperated fully with the union and actively solicited signatures on the authorization cards used to support the union's petition." It submitted a number of affidavits providing what it asserted to be factual support for its motion. A few days later, the assistant to the Regional Director advised the petitioner that an investigation of its motion had been conducted and that as a result it had been determined the interest of the petitioner "has not been tainted by supervisory participation." On the basis of this determination, he said "the petition (of the Union to be certified) will continue to be processed."
The petitioner endeavored to secure from the Regional Director the reason for dismissal of its motion for a collateral investigation. Unable to obtain from the office of the Regional Director such reason, the petitioner finally, three days after it was notified of the denial of its motion, telegraphed the Regional Director requesting an evidentiary hearing "for the purpose of determining the appropriate unit for voting." It added in its telegram that the Regional Director's dismissal was in effect a ruling that charge nurses were not supervisors "as defined in section 2(11) of the Act" and that such ruling was "in direct conflict with the terms of the stipulation for certification upon consent election entered into by both parties and approved by you." Because of this alleged departure from the stipulation, it declared that it "consider(ed) the stipulation to be invalid and not binding" on it. Along with this telegram, the petitioner filed a motion to reconsider the Regional Director's denial of its motion. The day after the Regional Director received this telegram, he rescinded the stipulation, cancelled the election, and ordered an evidentiary hearing as requested by the petitioner. The Board in the meantime granted review of the Regional Director's Decision with the Board but sustained, without a hearing, the decision of the Regional Director (one member dissenting).
An evidentiary hearing, at which the petitioner was represented by counsel, was then held. During this hearing, the issue of whether charge nurses had a supervisory status was fully litigated. Following the hearing, the Regional Director, for reasons duly set forth, ruled that charge nurses should be included in the bargaining unit. The petitioner sought review of this ruling of the Director. Review was granted by the Board, which, again without discussion, affirmed by a divided vote the Regional Director's decision.
The representation election was thereafter held and, after resolving the challenges, resulted in a majority for the Union by one or two votes. The petitioner filed timely objections to the election, supporting them with a position letter and a number of affidavits. The Regional Director dismissed the objections without an evidentiary hearing and certified the Union as bargaining agent. Again the petitioner sought review but this was denied, with one member dissenting. Petitioner then refused to bargain with the bargaining agent as certified by the Regional Director and the charge of refusal to bargain in violation of § 8(a)(5) and (1) of the Act followed, resulting in the order under attack by the petitioner.
As we have already indicated, the petitioner does not contest the finding of the Board that it failed to bargain. It bases its objection to the enforcement of the Board's order on the ground that the proceedings whereby the Union was certified as bargaining agent were flawed. It first contends that the Board improperly included in the bargaining unit charge nurses and their improper inclusion, carrying with it the right to vote in the representation election, was sufficient to change the result of the election. By its second argument, it would find the election voided by improper coercive conduct by the Union and its adherents rendering a fair election impossible.
The petitioner's objections to the inclusion of charge nurses in the bargaining unit were two-fold: First, it would assert that in its disposition of petitioner's motion for a collateral investigation the Board illegally repudiated the provision in the agreed stipulation which excluded from the bargaining unit charge nurses; secondly, even were the stipulation not to be considered binding, the record of the evidentiary hearing on an appropriate bargaining unit, held after the repudiation of the stipulation, provides no substantial evidence to support the Board's finding that charge nurses were to be included in such unit. We shall consider the two grounds in the order stated.
Were we confronted with a plain violation of an election stipulation by the Regional Director, we would be inclined to consider seriously the petitioner's claim in this regard. The rule has been often stated that "where the parties stipulate that the appropriate unit will include (or exclude) given jobs, the Board may not alter the unit; its function is limited to construing the agreement according to contract principles, and its discretion to fix the appropriate bargaining unit is gone." Tidewater Oil Company v. N. L. R. B. (2d Cir. 1966) 358 F.2d 363, 365; NLRB v. Mercy Hospitals (9th Cir. 1978) 589 F.2d 968, Cert. denied --- U.S. ----, 99 S.Ct. 1221, 59 L.Ed.2d 458 (1979). We have followed this rule in this Circuit. N. L. R. B. v. Schapiro & Whitehouse, Inc. (4th Cir. 1966) 356 F.2d 675, 676. Nor may the clear and unambiguous language of a stipulation be overcome or modified by the so-called "community of interests" test; 1 that test is only relevant if it can fairly be said the stipulation is ambiguous. N. L. R. B. v. Schapiro & Whitehouse, Inc., supra, 356 F.2d at 677; N. L. R. B. v. Midwest Television, Inc., (7th Cir. 1966) 370 F.2d 287, 289; N. L. R. B. v Detective Intelligence Service, Inc. (9th Cir. 1971) 448 F.2d 1022, 1025. Obviously, if "the inclusion or exclusion of employees within the stipulated unit (would) violate some settled Board policy or statutory provision the Board may take account of such policy or statute," and either disregard the stipulation or conform it to that "policy or statute." N. L. R. B. v. Detective Intelligence Service, Inc., supra, 448 F.2d at 1025. No doubt, too, the Board would have authority to rescind the stipulation if there are substantial changed circumstances making the performance under the stipulation unfair or inequitable. See N. L. R. B. v. W. S. Hatch Co., Inc. (9th Cir. 1973) 474 F.2d 558, 561. In fact, the Board itself accepts the foregoing principles as controlling in the implementation of stipulations for a representation election. NLRB v. Mercy Hospitals, supra. 2 The petitioner asserts without any contradiction by the Board that the stipulation in this case did not contravene any Board policies or statutory provisions nor was it undermined by any substantial changed conditions. Under those circumstances, it urges that the certification is void for failure of the Regional Director to conform to the stipulation in his disposition of the motion for a Collateral Hearing and later in the election itself.
Assuming, as the authorities manifestly suggest, that a failure to conform to the agreed election stipulation by the Regional Director would have provided ground for disregarding the certification based on an election held contrary to the terms of the stipulation, 3 the petitioner is in an awkward position to rely on the stipulation for that purpose in this case. This is not to say that we are insensitive to what must have been the feeling of frustration experienced by the petitioner as a result of its inability to elicit...
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