N.L.R.B. v. Affiliated Midwest Hosp., Inc.

• Citation: 789 F.2d 524
• Decision Date: 23 April 1986
• Docket Number: Nos. 85-1752,85-1848,s. 85-1752
• Parties: 122 L.R.R.M. (BNA) 2224, 54 USLW 2627, 104 Lab.Cas. P 11,859 NATIONAL LABOR RELATIONS BOARD, Petitioner and Cross-Respondent, and Warehouse, Mailorder, Office, Technical and Professional Employees Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervening Petitioner, v. AFFILIATED MIDWEST HOSPITAL, INC., d/b/a Riveredge Hospital, Respondent and Cross-Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 524

789 F.2d 524

122 L.R.R.M. (BNA) 2224, 54 USLW 2627,

104 Lab.Cas. P 11,859

NATIONAL LABOR RELATIONS BOARD, Petitioner and Cross-Respondent,

and

Warehouse, Mailorder, Office, Technical and Professional

Employees Local 743, International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervening Petitioner, v. AFFILIATED MIDWEST HOSPITAL, INC., d/b/a Riveredge Hospital,

Respondent and Cross-Petitioner.

Nos. 85-1752, 85-1848.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 12, 1985.

Decided April 23, 1986.

Fred Howard, Elliott Moore, Washington, D.C., for petitioner.

Joel A. D'Alba, Asher, Pavalon, Gittler & Greenfield, Ltd., Chicago, Ill., Ronald C. Henson, Ford & Harrison, Atlanta, Ga., for respondent.

Before COFFEY, FLAUM, and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

This appeal arises from challenges to a union decertification election that occurred over six years ago. The employer, which was unsuccessful in ridding itself of collective bargaining obligations, complained of a number of election irregularities, including union misrepresentation of the National Labor Relations Board's processes, failure to allow an employee properly within the unit but not on the voting list to cast a ballot, improper description of the bargaining units in the notice of election and the Board's certification orders, and confusion resulting from erroneous election notices. The Board, in a much delayed decision, affirmed the validity of the election results and subsequently, upon the employer's refusal to bargain, found that an unfair labor practice had been committed. In reaching its result the Board took a significant departure from its past precedent by declaring that misrepresentation of the NLRB's actions would no longer automatically require the invalidating of an election. Thus, on appeal, the employer contests not only the correctness of the Board's rulings on the conduct of the election but also the validity and retroactive application of the Board's new misrepresentation rule. Finding adequate support in the administrative record for all of the NLRB's conclusions, we affirm.

I

The employees in the technical and the service and maintenance units ¹ at the Riveredge Hospital in Park Forest, Illinois had been represented by the Union since June 14, 1978. Approximately one year later two employees filed petitions seeking to decertify the Union in both units. These petitions contained certain inaccuracies in that two positions, EKG/EST technician and medical technician, properly included in the technical unit were placed in the service and maintenance unit and a number of positions were omitted from the technical unit description. The employer, Affiliated Midwest Hospital, Inc. ("Affiliated Midwest"), owner of Riveredge, filed its own petition in July, 1979, which contained the correct unit descriptions as stated in both the collective bargaining agreement and the initial Board certification in 1978.

On August 10, 1979, Stipulations for Certification upon Consent Election, which were designed to control the conducting of the decertification election, were signed. The Stipulations did not contain unit descriptions but did incorporate by reference a list of eligible voters and their job classifications, a so-called Norris-Thermador list. See Norris-Thermador Corp., 119 NLRB 1301 (1958). The Norris-Thermador list accurately reflected the unit classifications of the collective bargaining agreement rather than the erroneous petition initially filed by the two employees. The list did contain, however, a significant error. The names of two employees, Ronnie Green and Alberto Anton, were inadvertently omitted from the service and maintenance unit list.

The problem of conflicting unit descriptions surfaced in the Board's issuance of notices of election. Two weeks prior to the election it was discovered that the notices that the NLRB required the employer to post contained the same erroneous unit description that appeared in the employees' petition. The hospital notified the Board of the error but no changes were made and the notices were posted. Affiliated Midwest contends that these notices resulted in employee confusion, a confusion which, according to the hospital, directly caused an "unusually low" voter turnout. Only seventy-three percent of eligible employees voted in contrast to the over eighty-five percent participation in the initial certification election in 1978.

During the course of the actual voting the omission of employees Green and Anton from the Norris-Thermador list was discovered when both employees attempted to vote. The NLRB agents initially refused to allow the two to cast challenged ballots. Once the clerical nature of the omission was revealed, Mr. Anton was allowed to cast a challenged ballot in the service and maintenance unit. Ms. Green, however, had already left the premises and was, thus, unable to participate in the election. The voting resulted in a majority in favor of continued representation in both the service and maintenance unit and the technical unit. The vote was relatively close: the technical unit totals were forty-six to thirty-eight, while the service and maintenance totals were twenty-five to twenty-three. The challenged ballot of Mr. Anton was not included since, in the absnece of a vote from Ms. Green, it was irrelevant to the ultimate result.

Affiliated Midwest filed timely objections to the election results. The objections were based on the problems surrounding the unit descriptions and the voting lists and, more significantly, a series of alleged misrepresentations made by the Union during the period between the filing of the petitions and the election. The most controversial of these statements was a leaflet entitled "U.S. GOVERNMENT ISSUED A COMPLAINT AGAINST RIVEREDGE." In fact, no action had been taken by the NLRB against the employer. The charge that had been filed resulted in a settlement containing a non-admissions provision.

On November 21, 1979, the Regional Director recommended that the election be set aside on the grounds that the discrepancies between the election notices and the Norris-Thermador list evidenced a failure of the parties to agree on the bargaining unit, making certification impossible. This recommendation was rejected by the Board and the case remanded. Riveredge Hospital, 251 NLRB 196 (1980). The Board concluded that there was agreement on the appropriate units and that any discrepancies were immaterial. The only appropriate unit in the decertification election is the recognized bargaining unit and the proper units were deemed to be represented by the stipulated Norris-Thermador lists.

On remand the Regional Director once again issued a recommendation that a new election be held. With respect to the denial of Ms. Green's ability to vote and the faulty election notices, the Regional Director found there was no material error. The misrepresentation of NLRB action, however, was held to require the disregarding of the election results under Formco, Inc., 233 NLRB 61 (1977), because the Union's actions "injected the Board into the campaign and caused its neutrality to be impaired."

For reasons that are not apparent from the record, the Board delayed two years before eventually overruling the Regional Director and certifying the election results. In the intervening two years the Board reversed itself for the third time in five years with regard to the effect of misrepresentations generally on labor elections. In Midland National Life Insurance, 263 NLRB 127 (1982), the Board held that misrepresentations would not constitute per se grounds for vacating an election. The decision did not expressly deal with misrepresentations concerning the NLRB's processes or actions; this is an area of voting problems where the Board, despite its machinations over general misrepresentations, has consistently refused to certify union elections. See Formco, 233 NLRB 61 (1977). In reversing the Regional Director in the present case, the Board expressly overruled Formco, finding that there "was no sound reason why misrepresentations of Board actions should be on their face objectionable or be treated differently than other misrepresentations." Riveredge Hospital, 264 NLRB 1094, 1095 (1982).

In response to the certification order Affiliated Midwest refused to bargain with the Union on the theory that the certification order was improper. Unfair labor practice charges were filed against Affiliated Midwest, which responded by contesting the merits of the Board's decision and the retroactive application of the overruling of Formco. The Board ruled that the employer was attempting to relitigate issues already dealt with in the certification proceedings without offering any new evidence or special circumstances that would require re-examination. On this basis summary judgment was granted.

In September of 1983, Affiliated Midwest filed a motion for reconsideration on the grounds that the Board did not have the complete record before it when it ruled on the certification question in 1982. The Board once again waited close to two years before ruling. On March 13, 1985, the NLRB denied the motion for the alternative reasons that the employer was aware at an earlier stage of the proceedings of what the Regional Director had transmitted to the Board and thus waived the argument and that Affiliated Midwest raised only legal challenges to the Regional Director's decision so that factual matters implicating the record were not at issue.

II

Affiliated Midwest comes before this court with essentially the same arguments it presented to the Board during the certification proceedings. First, and most significantly, it challenges the validity and retroactivity of the Board's new misrepresentation standard. Second, it questions the propriety of the refusal to allow an employee not on the Norris-Thermador list but properly within...