09/04/2024: Two Contract Bars!

One against an employer, the other against a union.

SSM Health Saint Louis University Hospital, 14-RD-347354 (Regional Election Decision)

This decision concerns a decertification petition filed by employee Marissa Martinez on July 31, 2024, seeking to decertify National Nurses Organizing Committee/National Nurses United, AFL-CIO as the bargaining representative for registered nurses at SSM Health Saint Louis University Hospital.

The key issue was whether a contract bar existed that would preclude processing the decertification petition. The Regional Director found that a contract bar did exist and dismissed the petition.

Key facts:

• The employer and union had been in a bargaining relationship since 2012.

• They began negotiating a successor agreement in May 2023.

• On July 22, 2024, they reached a tentative agreement (the "July 22 Signed Agreement").

• The union ratified this agreement on July 27, 2024.

• The decertification petition was filed on July 31, 2024.

Legal Analysis:

The Regional Director applied the Board's contract bar doctrine, which holds that a current and valid collective bargaining agreement will prevent the holding of a representation election.

Key legal principles applied:

1. For a contract to bar an election, it must be in writing, signed, and contain substantial terms and conditions of employment. Appalachian Shale Products Co., 121 NLRB 1160 (1958) (establishing basic requirements for contract bar).

2. The contract's duration must be ascertainable from its face, without resorting to parol evidence. Union Fish Co., 156 NLRB 187 (1966) (holding contract term must be clear from document itself).

3. However, parol evidence can be considered in three narrow circumstances: a) Where the unit scope is ambiguous b) Where the execution date is unclear c) Where ratification is an express condition precedent

4. When ratification is a condition precedent, the contract is ineffective as a bar unless ratified before a petition is filed. Appalachian Shale Products Co., 121 NLRB 1160 (1958) (establishing rule on ratification as condition precedent).

Applying these principles, the Regional Director found:

1. The July 22 Signed Agreement met the basic requirements - it was written, signed, and contained substantial terms.

2. The agreement's effective date was the ratification date, as expressly stated in the document.

3. Since ratification was a condition precedent, parol evidence could be considered to determine the ratification date (July 27, 2024).

4. The expiration date could be determined from the agreement's language (one year after the final wage increase).

5. The agreement was ratified on July 27, before the July 31 petition filing, making the petition untimely.

The Regional Director rejected the employer's arguments that:

1. The agreement was not final because parties reserved the right to make changes.

2. There were open issues left to resolve.

The Director cited St. Mary's Hosp., 317 NLRB 89 (1995), which held that an agreement need not be final or delineate every provision to qualify as a contract bar.

In conclusion, the Regional Director found a valid contract bar existed and dismissed the decertification petition.

Legacy Emanuel Hospital & Health Center d/b/a Unity Center for Behavioral Health, 19-RC-346729 (Regional Election Decision)

The case involves Legacy Emanuel Hospital & Health Center (the Employer), which operates both the Legacy Emanuel Medical Center (Emanuel) and the Unity Center for Behavioral Health (Unity), and the Oregon Nurses Association (the Petitioner). The Petitioner filed for an Armour-Globe self-determination election seeking to include the Behavioral Health Technicians (BHTs) employed at Unity into an existing bargaining unit composed of various professional employees, such as social workers and clinical therapists, already represented by the Oregon Nurses Association.

The Employer opposed this petition on several grounds. The primary legal issues were:

1. Whether Unity and Emanuel should be treated as a single integrated facility for determining the appropriate bargaining unit under the Health Care Rule.

2. Whether the BHTs share a sufficient community of interest with the professional employees to justify inclusion in the existing unit.

3. Whether the BHTs should be considered professional employees under Section 2(12) of the National Labor Relations Act (NLRA), which would require a Sonotone election to allow the professional employees to vote on whether to be included with non-professional employees.

Legal Analysis:

1. Application of the Health Care Rule:

   • The Employer argued that Unity and Emanuel constitute a single integrated facility, and thus the Health Care Rule should apply. The Health Care Rule outlines specific units considered appropriate for collective bargaining in acute care hospitals. The Regional Director, however, rejected this argument, citing a previous case (Case 19-RC-241339) where the Board had already determined that Unity was not sufficiently integrated with Emanuel to be considered part of the same facility for purposes of applying the Health Care Rule. No new facts or changed circumstances were presented, leading the Regional Director to rule that the Health Care Rule did not apply to Unity.

2. Community of Interest:

   • The Regional Director applied the Armour-Globe doctrine, which allows unrepresented employees to join an existing bargaining unit if they share a sufficient community of interest with the represented employees. The Regional Director found that the BHTs at Unity shared a community of interest with the professional employees in the existing bargaining unit. Factors supporting this conclusion included the BHTs' similar terms and conditions of employment, frequent contact with professional staff, and functional integration in delivering patient care as part of multidisciplinary teams. Although the BHTs had distinct supervision and training requirements, these factors were outweighed by the similarities in their roles and working conditions with the professional employees.

3. Professional Employee Status:

   • The Employer also argued that the BHTs should be considered professional employees under Section 2(12) of the NLRA, requiring a separate vote by the professional employees on whether to be included in a unit with non-professional employees. The Regional Director determined that the BHTs did not meet the statutory definition of "professional employees." The BHTs’ work was found to be predominantly non-intellectual, involving routine mental and physical tasks, and they did not require the advanced knowledge typically associated with professional employees. The lack of a formal degree requirement for the position further supported the conclusion that the BHTs were not professional employees.

4. Sonotone Ballot Requirement:

   • Since the BHTs were not professional employees, the professional employees in the existing bargaining unit were required to vote in a modified Sonotone election to determine whether they wished to be included in a unit with non-professional employees like the BHTs. The ballot for the professional employees would ask only whether they wished to be included in a unit with non-professional employees, without questioning their overall representation.

Conclusion:

The Regional Director found that the BHTs shared a community of interest with the professional employees and directed that a self-determination election be held among the BHTs to decide whether they wanted to join the existing bargaining unit. A separate Sonotone vote would be conducted among the professional employees to determine whether they consented to being included in a unit with non-professional employees like the BHTs.

Significant Cases Cited:

1. Warner-Lambert Co., 298 NLRB 993 (1990): Provided the standard for Armour-Globe self-determination elections, requiring a shared community of interest and an identifiable, distinct segment.

2. Sonotone Corp., 90 NLRB 1236 (1950): Established the requirement for a separate vote among professional employees when they are asked to be included in a bargaining unit with non-professional employees.

3. Carry Companies of Illinois, 310 NLRB 860 (1993): Board decisions in representation cases have preclusive effect in subsequent cases if the issue was fully litigated and an essential component of a final judgment.

Training Rehabilitation & Development Institute (TRDI), 28-UC-311104 (Regional Election Decision)

The case centers around Training Rehabilitation & Development Institute, Inc. (the Employer), a contractor providing custodial and groundskeeping services at federal facilities in El Paso, Texas. The International Union of Operating Engineers, Local 351 (the Union) filed a Unit Clarification Petition (the Petition) seeking to include the job classifications of Lead Custodians and Janitor Supervisors into the existing bargaining unit. The Employer opposed this petition, arguing that these positions should be excluded as supervisory roles under Section 2(11) of the National Labor Relations Act (NLRA).

The Union filed the Petition during the term of a collective bargaining agreement (CBA) effective from September 1, 2022, to August 31, 2023, which excluded the Lead Custodians/Janitor Supervisors from the unit. The Employer also argued that the petitioned-for employees should be excluded as supervisors.

Legal Analysis:

1. Contract Bar Doctrine:

   • The Regional Director examined whether the Petition was timely. A contract bar exists when a petition is filed during the term of a valid CBA, which would prevent the modification of a bargaining unit during the agreement’s duration unless significant changes to the roles of the disputed positions occurred. The Union’s Petition sought to change the unit midterm by adding supervisory roles, which had been historically excluded from the bargaining unit. The Board’s precedent, including Union Electric Co., 217 NLRB 666 (1975), and Kaiser Foundation Hospitals, 337 NLRB 1061 (2002), prevents midterm petitions that aim to modify a contractually agreed-upon unit without substantial changes in the roles of the employees.

   • The Employer reclassified the Lead Custodian positions as Janitor Supervisors in 2020. The Union had multiple opportunities, including during CBA negotiations, to raise the issue of including these employees in the unit but failed to do so. The Regional Director concluded that there was no evidence of substantial changes in job duties for these employees since their reclassification. Consequently, the petition was deemed untimely and dismissed based on the contract bar.

2. Supervisory Status under Section 2(11):

   • Even if the Petition had been timely, the Regional Director examined whether the Janitor Supervisors were statutory supervisors under Section 2(11) of the NLRA, which defines supervisors as individuals with the authority to hire, transfer, suspend, lay off, promote, discharge, assign, or discipline employees, or to effectively recommend such actions using independent judgment.

   • The Employer provided evidence showing that the Janitor Supervisors directed and assigned employees, exercised discretion in transferring and disciplining workers, and issued performance evaluations. These supervisory actions were not merely routine or clerical. The Regional Director applied the standards established in Oakwood Healthcare, Inc., 348 NLRB 686 (2006) and DirecTV, 357 NLRB 1747 (2011), finding that the petitioned-for employees exercised independent judgment in their roles, making them supervisors under Section 2(11).

Conclusion:

The Regional Director dismissed the Petition on two grounds:

1. The Petition was untimely due to the contract bar, as it was filed during the term of an existing CBA without substantial changes to the employees' roles.

2. Even if timely, the Janitor Supervisors were found to be statutory supervisors under Section 2(11) of the NLRA and thus properly excluded from the bargaining unit.

Significant Cases Cited:

1. Union Electric Co., 217 NLRB 666 (1975): Clarified that midterm modifications to a bargaining unit are not permissible unless there are substantial changes in the roles of the employees.

2. Kaiser Foundation Hospitals, 337 NLRB 1061 (2002): Held that the Board will not entertain a petition to include historically excluded employees unless there are recent, substantial changes in their job functions.

3. Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined the standards for determining supervisory status under Section 2(11) of the NLRA.

4. DirecTV, 357 NLRB 1747 (2011): Reinforced the requirement that individuals must exercise independent judgment in supervisory roles to be excluded from bargaining units.