NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Spectrum Health–Kent
Community Campus and International
Union, United Automobile, Aerospace and Agricultural Implement Workers of
Cases 7–CA–50996 and 7–CA–51112
February 26, 2009
DECISION AND ORDER
By
Chairman Liebman and Member Schaumber
On
September 4, 2008, Administrative Law Judge David I. Goldman issued the
attached decision. The Respondent filed
exceptions and a supporting brief, and the Charging Party filed an answering
brief.
The
National Labor Relations Board[1]
has considered the decision and the record in light of the exceptions and
briefs, and has decided to affirm the judge’s rulings, findings,[2]
and conclusions[3] and to
adopt the recommended Order.
Remedy
For the reasons set forth in Caterair International, 322
NLRB 64 (1996), we find that an affirmative bargaining order is warranted in
this case as a remedy for the Respondent’s unlawful withdrawal of recognition. The Board has held that an affirmative
bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal
to bargain with the lawful collective-bargaining representative of an appropriate
unit of employees.”
In Vincent, supra, the court summarized its requirement
that an affirmative bargaining order “must be justified by a reasoned analysis
that includes an explicit balancing of three considerations: ‘(1) the
employees’ Section 7 rights; (2) whether other purposes of the Act override the
rights of employees to choose their bargaining representatives; and (3) whether
alternative remedies are adequate to remedy the violations of the Act.’”
Consistent with the court’s requirement, we have examined the
particular facts of this case as the court requires and find that a balancing
of the three factors warrants an affirmative bargaining order.
(1)
An affirmative bargaining order in this case vindicates the Section 7 rights of
the unit employees who were denied the benefits of collective bargaining by the
Respondent’s withdrawal of recognition and resulting refusal to collectively
bargain with the
(2) An affirmative bargaining order also serves the policies of
the Act by fostering meaningful collective bargaining and industrial peace. That is, it removes the Respondent’s
incentive to delay bargaining in the hope of discouraging support for the
(3) A cease-and-desist order, alone, would be
inadequate to remedy the Respondent’s withdrawal of recognition and refusal to
bargain with the Union because it would allow another such challenge to the
For all the foregoing reasons, we find that
an affirmative bargaining order with its temporary decertification bar is
necessary to fully remedy the violations in this case.
ORDER
The
National Labor Relations Board adopts the recommended Order of the administrative
law judge and orders that the Respondent, Spectrum Health–Kent Community
Campus,
Dated,
|
Wilma B. Liebman, |
Chairman |
|
|
|
|
|
|
|
Peter C. Schaumber, |
Member |
|
|
|
|
|
|
(Seal) National Labor
Relations Board
A. Bradley Howell, Esq. (Region 7, NLRB) of
Peter J. Kok, Esq. and Nathan D. Plantinga, Esq. (Miller Johnson)
of
Georgi-Ann Bargamian, Esq. (UAW Legal
Department) of
DECISION
Introduction
David I. Goldman, Administrative Law Judge. These cases involve an employer that withdrew recognition from its employees’ union during the term of a collective-bargaining agreement, repudiated the collective-bargaining agreement, and unilaterally implemented changes to the terms and conditions of employment. The employer took these steps after it received a petition from the majority of its employees declaring that they no longer wanted to be represented by the union.
Under well-settled precedent a union enjoys an irrebuttable presumption of majority support for so much of the term of a labor contract that is a “reasonable length”—for many years interpreted by the Board as up to three years. During the first three years of a contract, evidence of an ebb in employee support for the union does not provide a basis for employer “self help”—i.e., unilateral withdrawal of recognition of the union—any more than a midterm ebb in support for a president or congressman permits their ouster.
The contract in this case was agreed to, ratified, executed, and by its terms “effective” in April 2005. It was scheduled to expire at 12:01 a.m. April 1, 2008. Accordingly, contend the union and the General Counsel, the employer’s January 2008 withdrawal of recognition was not permitted under longstanding Board precedent not disputed by the employer.
This would end the matter, however, the employer points to the cover page of the contract. On the cover page, across the bottom, are the words, “Date of Agreement: January 1, 2005 through March 31, 2008.” This language, argues the employer, unambiguously shows that the contract had a term that began January 1, 2005, and concluded at the end of March 31, 2008. Accordingly, contends the employer, when confronted with evidence of a lack of majority support for the union in January 2008, the irrebuttable presumption of majority support had lapsed and the employer was free, indeed, required, to withdraw recognition from the union, repudiate the contract, and, thereafter, free to unilaterally alter terms and conditions of employment.
Alternatively, the employer contends that if the cover page renders the contract’s term ambiguous and unclear, then the irrebuttable presumption of majority support was ineffective as a matter of law. Looking to principles utilized by the Board in applying its representational contract bar doctrine, the employer argues that ambiguity in the written document precludes reliance on the irrebuttable presumption of majority support to bar the withdrawal of recognition.
Statement of the Case
The International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America (UAW), and its Local
2600 (collectively, the Union or UAW) filed an unfair labor practice charge
against Spectrum Health–Kent Community Campus (the Hospital or Spectrum) on January
15, 2008, docketed as Case GR–7–CA–50996.
The
This dispute was heard in
Jurisdiction
The complaint alleges, Spectrum admits, and I find that Spectrum is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a health care institution within the meaning of Section 2(14) of the Act. The complaint alleges, Spectrum admits, and I find that the UAW and Local 2600 are labor organizations within the meaning of Section 2(5) of the Act.
Alleged Unfair Labor Practices
Facts
Background
Respondent operates a hospital in
Since about October 1999, and continuing through
January 7, 2008, when Spectrum withdrew recognition, the
The 2002 and 2005 Agreements
The parties have entered into successive collective-bargaining agreements covering the bargaining unit, the most recent of which was executed April 15, 2005 (the 2005 Agreement or the Agreement).
The collective-bargaining agreement preceding
the 2005 Agreement was effective by its terms from January 1, 2002, through December
31, 2004 (the 2002 Agreement). The 2002 Agreement states at the
bottom of the cover page:
“Date Of
Agreement: January 1, 2002 Through December 31, 2004”
Consistent
with this legend, the initial paragraph of the agreement, under the heading
“AGREEMENT,” states,
This is an
Agreement by and between SPECTRUM HEALTH – KENT COMMUNITY CAMPUS (“Hospital”)
and LOCAL 2600, THE INTERNATIONAL UNION , UNITED AUTOMOBILE, AEROSPACE, AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (“
Again, consistent with the legend on the cover page, the “Termination” provision of the 2002 Agreement states, in relevant part: “This Agreement shall remain in force until midnight, December 31, 2004 . . .”
The Hospital
and the
In the process of bargaining for the new
agreement, the Hospital and the
On January
14, 2005, The Hospital provided the Union with a draft contract embodying what
it referred to as its final proposal, which, with a few new changes, had been
submitted to the
On February
7, 2005, the
According to
the “minutes” of the March 23, 2005 negotiations session prepared by the
Hospital’s lead negotiator, Joseph Martin, during that meeting the following
exchange occurred:
Noting that
the parties’ tentative agreement that the collective-bargaining agreement will
expire on November 2, 2007, Joe Martin asked whether the parties should
consider instead entering into a 3 year agreement which would expire three
years after ratification/final approval by the Union. The parties will consider this possibility,
but absent agreement to the contrary, the contract would expire as previously
agreed (i.e.: November 2, 2007).
On March 31,
2005, the parties had their final bargaining session. Spectrum proposed revised wage and health
insurance provisions, including wage increases for current employees that would
be retroactive to January 1, 2005, if the agreement was approved within a
still-to-be determined date in the near future.
The March 31 proposal stated, in part, that wages for current employees would
be
[r]etroactive
to January 1, 2005, if final contract approval by the
Spectrum’s
March 31 proposal for future hires was different. It provided, inter alia:
Annual
increase dates to be as of anniversaries of contract effective date, not
“January 1”.
In addition,
Spectrum’s March 31 proposal included health insurance changes, including
provisions applying to employee retiring after January 1, 2005, and a capping
of premiums at certain levels between January 1 and December 31, 2005.
By the end of
the March 31 meeting the parties reached tentative agreement on a new contract,
subject to ratification. The tentative
agreement included proposals on retroactivity offered by the Hospital. On April 13, 2005, the Union membership voted
in favor of approving this tentative agreement.
On April 14, 2005, the Hospital’s lead negotiator Martin forwarded a
draft of the collective-bargaining agreement to the
The initial
paragraph of the 2005 Agreement, under the heading “AGREEMENT,” states,
This is an
Agreement by and between SPECTRUM HEALTH – KENT COMMUNITY CAMPUS (“Hospital”)
and LOCAL 2600, THE INTERNATIONAL UNION , UNITED AUTOMOBILE, AEROSPACE, AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (“
The
“Termination” provision of the 2005 Agreement states, in relevant part:
“This
Agreement shall remain in force until 12:01 a.m., April 1, 2008 . . .“
Stated across
the bottom of the cover page of the 2005 Agreement is the following:
“Date Of
Agreement: January 1, 2005 Through March 31, 2008.”
The January
2008 Withdrawal of Recognition and Subsequent Events
The Hospital withdrew recognition from the
The next day, on January 8, the Hospital mailed a letter to all bargaining unit employees addressed to "Former UAW Staff.” The letter was also posted in the facility on January 8. The letter stated in part: "The current UAW contract will no longer be in effect." Attached to that letter was a list of "Frequently Asked Questions" accompanied by answers provided by the Hospital. On the question of dues the attachment stated that dues would no longer be deducted from employee paychecks, effective "immediately." The Hospital did stop deducting dues from employee paychecks on January 8, 2008. Following its withdrawal of recognition, the Hospital denied a grievance filed under the collective-bargaining agreement on the basis that the issue would be handled under its (nonbargained) “fair treatment policy.”
The Hospital held meetings for all employees
beginning January 8. These meetings took
place primarily on January 8 and 9, and were conducted by top Hospital
officials. A few additional meetings
with employees who were not in attendance on January 8 and 9 were held on
January 10–12. The Hospital informed
employees at these meetings that it had withdrawn recognition from the
During the week of February 25, 2008, the Hospital posted in its facility a notice of "Town Hall Meetings" to be held on March 3 and March 7. The notice promised “Exciting News For Former UAW Staff.” It stated:
Please,
mark your calendar now!
You are
invited to attend one of these Town Hall meetings to hear about the exciting
changes that will affect you!
On March 3 and 7, the Hospital held the town hall meetings with employees at which it announced that it had implemented (effective March 2) the following changes to the employees' wages and benefits: an across-the-board wage increase of 4.25 percent; an additional 2 percent increase to all employees who scored 3.5 or better on their performance evaluations from the prior year; 1.5 times the base rate for holiday hours worked instead of a 65 cents per hour holiday wage premium; an increase in weekday shift premiums from 65 cents per hour to $1 per hour for the 3 p.m. to 11 p.m. shift and the 11 p.m. to 7 a.m. shift; an increase in weekend shift premiums from 65 cents per hour to $1.50 per hour for all shifts worked from 3 p.m. Friday to 7 a.m. Monday; a reduction from 12 to 6 months in the eligibility waiting period for the Hospital’s short term disability plan; and movement of the bargaining unit employees into the established pay ranges that existed for the Hospital’s nonunion employees.
At the meetings, Hospital officials also made reference to additional possible wage adjustments in October 2008.
On March 17, the Hospital mailed a "Fact Sheet" to each employee which detailed the changes to the individual's pay and identified his or her new pay rate.
On March 19, the Hospital mailed a letter to all employees addressed to "Former UAW Staff." This letter identified changes in wages and benefits. It also referenced the likelihood of a further pay increase in October 2008. The letter stated:
Finally, please note that all [Spectrum] non-union staff normally receives a pay increase in October. We will also move you to the October pay cycle at which time your compensation and performance will be evaluated. As such, you may expect another compensation adjustment in October.
Legal Analysis
a. The Withdrawal of Recognition
The Supreme Court has recognized that “[t]he
object of the National Labor Relations Act is industrial peace and stability,
fostered by collective-bargaining agreements providing for the orderly
resolution of labor disputes between workers and employers.” Auciello
Iron Works, Inc. v. NLRB, 517
The precondition for a union’s service as a
bargaining unit’s exclusive representative is the existence of majority support
for the union within the unit. Auciello Iron Works, 517
[t]he Board has also recognized that, for employees’ choices to be meaningful, collective-bargaining relationships must be given a chance to bear fruit and so must not be subject to constant challenges. Therefore from the earliest days of the Act, the Board has sought to foster industrial peace and stability in collective-bargaining relationships, as well as employee free choice, by presuming that an incumbent union retains its majority status.
Levitz, supra at 720.
The presumption of majority support is usually rebuttable, but in some periods of a collective-bargaining relationship it is conclusive. One such period is during the life of a collective-bargaining agreement up to three years. Thus, it is a “long-established principle that a union enjoys an irrebuttable presumption of majority support during the term of a collective-bargaining agreement, up to 3 years.” Trailmobile Trailer, LLC, 343 NLRB 95, 97 (2004); Levitz, supra at fn. 17 (“a union’s majority status may not be questioned during the life of a collective-bargaining agreement up to 3 years”); Auciello Iron Works, 517 U.S. at 791 (rejecting an exception “to the conclusive presumption [of majority support] arising at the moment a collective-bargaining contract offer has been accepted”). See, Shaw’s Supermarkets, 350 NLRB No. 55 (2007) (employer may rely on evidence of (untainted) actual loss of majority support to withdraw recognition after the third year of a contract of longer duration). This presumption works in tandem with and conforms to Section 8(d) of the Act, which provides that when a collective-bargaining agreement is in effect “the duty to bargain collectively shall also mean that no party to such contract shall [unilaterally] terminate or modify such contract.” 29 U.S.C. § 158(d).
Here, Respondent offers (R. Br. at 13), correctly, that “[t]he central issue in this case is the term of the Agreement.” If the term of the 2005 Agreement began more than three years before the January 7, 2008 withdrawal of recognition, the irrebuttable presumption of majority support had lapsed and would not bar the withdrawal. However, if the term of the Agreement had begun within three years of the withdrawal of recognition, the irrebuttable presumption of majority support rendered the withdrawal of recognition unlawful.
Second, and alternatively, the Hospital contends that if the term of the 2005 Agreement cannot unambiguously be gleaned from the four corners of the agreement, the irrebuttable presumption of majority support cannot be relied upon to bar the withdrawal of recognition.
1. Had the term of the 2005 Agreement run beyond the three year irrebuttable-presumption-of-majority-support period when the employer withdrew recognition in January 2008?
As discussed, the irrebuttable presumption of majority support bars a unilateral employer withdrawal of recognition during the first three years of a collective bargaining agreement. The parties dispute whether the 2005 Agreement was within the three year period when the Hospital withdrew recognition on January 7, 2008.
In determining the term of the Agreement, of importance, of course, is that the 2005 Agreement states that it was “effective” as of April 13, 2005. It became binding and fully accepted upon ratification on that day. These facts are undisputed. Moreover, it is also undisputed that there was no collective-bargaining agreement in effect from January 16, 2005 to April 13, 2005, when the 2005 Agreement became effective. While particular provisions of the 2005 Agreement are expressly designated as being retroactive to January 1, 2005, the effective date of the Agreement is not.
However, there is the question of the import of the cover page of the 2005 Agreement that states, “Date Of Agreement: January 1, 2005 Through March 31, 2008.” Respondent contends that this (and nothing else in the agreement) unambiguously states the term of the Agreement and is just one more of several provisions of the 2005 Agreement retroactive to January 1, 2005.
Although
Respondent’s vigorous characterization of the cover page language crosses from
enthusiasm to hyperbole,3 it is true
that were the 2005 Agreement silent about its effective date and termination
date Respondent’s argument would have more force. But the 2005 Agreement is not silent. The opening sentence of the 2005 Agreement
states that “[this is an Agreement . . . effective April 13, 2005.” The Agreement’s “Termination” provision
states that “This Agreement shall remain in force until 12:01 a.m., April 1,
2008.” These provisions—which are at
least as, if not more probative of the Agreement’s term than the cover page
legend4—render untenable the Hospital’s claim (R. Br. at
10), that the 2005 Agreement unambiguously,
and based solely on the cover page legend, was a contract commencing January 1,
2005, and lasting for more than 3 years.
The Hospital
attempts to avoid the conclusion that the combination of the cover page dates
and the effective/termination clauses render the Agreement’s term ambiguous
with an exceedingly strained construction of the Agreement. Respondent contends (R. Br. at 21) that while
the contract first became “effective” on April 13, the cover page dates
evidence the parties’ intent to negotiate an Agreement that (retroactively) was
intended to begin its term on January 1, 2005, and terminate at the end of
March 31, 2008. Thus, Respondent draws a
distinction between the effective date and termination date of the Agreement,
on the one hand, and the term of the Agreement, on the other. As explained (Tr. 26) by counsel at the
hearing:
The agreement
of the parties became effective on April 13, 2005, which is what this document
says. That date says nothing about the
term of the agreement. There is only one
place in the four corners of this agreement where the term is spelled out, the
beginning and the ending, only one place, and that’s right on the front page. That’s it.
This argument
is extraordinary. As the Board has recognized
in the somewhat different circumstances of applying its contract bar doctrine
to an election petition: “[t]he term of a contract technically embraces the
effective term provided in the instrument.”
Ben Franklin Paint & Varnish
Co., 124 NLRB 54, 55 (1959). As
Respondent concedes, the express effective term in this Agreement is April 13,
2005. Respondent’s claim is wholly
untenable as grounds for claiming the 2005 Agreement unambiguously sets the term of the Agreement as January 1, 2005, to
March 31, 2008. It relies on a supposed
distinction between the effective/termination dates expressly stated in the
contract, on the one hand, and the alleged term of the agreement on the
other. That such a novel distinction was
intended by the parties is anything but unambiguous in the 2005 Agreement. Indeed, given that other retroactive
provisions of the 2005 Agreement, such as the retroactive wage provision for
incumbent employees, expressly state that they are to be retroactively applied,
the apparent conflict between the cover
page of this contract and the effective/termination dates of the Agreement
presents itself as a discrepancy that cannot be pounded by Respondent into an
unambiguous expression of intent.
Accordingly,
at best for Respondent’s argument, the 2005 Agreement is ambiguous as to its
term, which renders untenable the Hospital’s contention that the parol evidence
rule bars consideration of evidence beyond the four corners of the 2005
Agreement to assist in resolving that ambiguity.
Doubletree Guest Suites Santa Monica, 347 NLRB No. 72, slip op. at
3 (2006) (parol evidence may not be offered “for the purpose of varying or
contradicting the terms of a contract.
When a contract's meaning is ambiguous, however, parol evidence is admissible
for the purpose of resolving that ambiguity”); Sansla Inc., 323 NLRB 107, 109 (1997). Thus, Board precedent is clear that
[i]n contract interpretation matters like this, the parties' actual intent underlying the contractual language in question is always paramount, and is given controlling weight. To determine the parties' intent, the Board normally looks to both the contract language itself and relevant extrinsic evidence, such as a past practice of the parties in regard to the effectuation or implementation of the contract provision in question, or the bargaining history of the provision itself.
Mining Specialists, 314 NLRB 268, 268–269 (1994) (footnotes omitted).
A review of
all the evidence of intent points in one direction only—that the 2005 Agreement
was effective April 13, 2005, and its term was not made generally retroactive
so that the term of the agreement can be said to have begun January 1,
2005. Certainly, the bargaining history
and prior contracts and proposals offer no support for Respondent’s conjecture
that the 2005 Agreement’s term began January 1, 2005.
It is clear
that the Hospital’s final proposal—the blue draft submitted to the Union on
January 14—both on its cover and in the body of the document in the opening
provision and the termination clause, set forth the relevant dates for the
proposed agreement as January 1, 2005, and November 1, 2007. But things changed through the course of
further negotiations. Notes from minutes
made by the Hospital’s chief negotiator demonstrate that during the March 23
bargaining session the Hospital raised for consideration “whether the parties
should consider instead entering into a 3 year agreement which would expire
three years after ratification/final approval by the
That
agreement, contained in the document forwarded by the Hospital to the
It is notable
that three of the four relevant dates were changed in the final agreement. The changed termination dates (both on the
cover page and in the body of the agreement in the Termination clause) reflect
consistent changes—the cover date of “through March 31” brings us to 12:01 a.m.
April 1. The effective date in the
contract was also changed, to April 13.
For some reason, however, the cover date of “January 1” was not changed.
Why?
Occam’s Razor holds that the simplest of
competing theories is preferred over the more complex. By this measure, Respondent’s contention—that
the January 1, 2005 cover language kept from earlier draft proposals was the
true starting date of the contract, even though the effective date in the
contract were changed through negotiation to April 13—is not compelling. It is not just that the express language of the contract
states that the “effective date” of the agreement is April 13. In addition, if the contract’s term was
intended to begin January 1, one wonders why the contract had to specifically
designate those particular provisions that were retroactive to January 1. While Respondent points to the fact that the
Agreement’s wage provisions and certain benefit provisions were made
retroactive to January 1, 2005, this advances the General Counsel’s, not Respondent’s
case. If the term of the Agreement was
to begin January 1, then all provisions of the agreement would take effect on
that date and a specific reference would be needed in order to provide for the
later commencement of a particular provision.
But, in fact, it is those provisions retroactive to January 1 that are
the designated exceptions, which only underscores that the Agreement’s term
generally was not intended to be retroactive to January 1, 2005. Respondent’s argument would fit better on a
contract that was wholly retroactive,
i.e. deemed effective, on January 1. But
that is not this contract.
Somewhat more plausible, and certainly simpler, is the suggestion of the General Counsel on brief (GC Br. at 10) that the January 1 date on the cover “was simply a reflection that certain wage and benefit provisions were made retroactive to January 1, 2005.” That is possible—and to the extent it misled employees as to term of the contract it might serve to undermine the contract’s usefulness as a bar to an election petition filed after January 1, 2008 (see discussion, infra).
However, a third explanation for the January 1 date on the cover seems most plausible under the circumstances: no one noticed it at the time because it was an inadvertent mistake overlooked by parties who understood full well that the new contract ran from April 13 to midnight March 31, 2008. This is, I believe, the most likely explanation. The January 1 date on the cover page was a holdover, inadvertently carried over from all previous drafts, including the blue draft. On March 23, these dates were specifically referenced and while there was no agreement that day to change the dates, there was agreement to change them by the time of ratification. Only an agreement to change the effective date and termination of the contract explains the Hospital negotiator’s decision to affirmatively change the contract’s termination and effective date from its prior drafts to the final language. This explains the conforming change of one of the two dates on the cover page. Inadvertence most reasonably explains the failure to also make the conforming change to the initial date of the cover page.5
Respondent contends that “[i]t defies credulity to conclude that the parties specifically negotiated over the term of the Agreement, and then intentionally changed one end of the term while inadvertently overlooking the other.” I do not agree at all. In this case inadvertence explains what is highly implausible or inexplicable if attributed to intentional motive. What defies credulity is that the parties negotiated and changed the termination date (on the cover and in the agreement), and negotiated and changed the effective date of the contract, but then purposely left January 1, on the cover to signal the initial beginning date of the agreement. I do not believe it. I find that it was a mistake, and that the parties entered into an Agreement on April 13, 2005, the term of which was April 13, 2005, to 12:01 a.m. April 1, 2008 at midnight.6
Board precedent is clear about the outcome in such circumstances. “[T]he parties conduct should be governed by what they agreed to and not by what was mistakenly put in the contract.” Cook County School Bus, Inc., 333 NLRB 647, 653 (2001) (rejecting employer’s right to withdraw recognition based upon employee petition where error in contract provision raised possibility, wrongly, that contract had expired).
Thus,
the contract’s “term” began (Trailmobile
Trailer, LLC, 343 NLRB 95 (2004)), it had “life” (Levitz, 333 NLRB 717 (2001)), and was “accepted” (Auciello Ironworkers, Inc v. NLRB, 517
U.S. 781 (1996)) no earlier than April 2005.
Given
that the 2005 Agreement was in effect only since April 2005, the conclusive
presumption of majority support to which a union is entitled during the life of
a contract up to three years renders the January 2008 withdrawal of recognition
unlawful.
Accordingly, the Hospital was not privileged to
withdraw recognition from the
2. The Hospital’s alternative contention: the irrebuttable presumption of majority support does not apply if the term of the Agreement cannot unambiguously be gleaned from the written contract
Respondent also contends (R. Br. at 20–23) that if the duration of the 2005 Agreement is ambiguous—based on the inconsistency between the cover page date and the effective date in the contract—then the complaint must be dismissed because “General Counsel cannot carry his burden if the term of the Agreement is ambiguous.” (R. Br. at 21).
Essentially, Respondent contends that if the Agreement is ambiguous as to the term, as a matter of law (or, more accurately, Board policy), the irrebuttable presumption of majority support cannot bar a withdrawal of recognition that is based on employee sentiment.
For this argument, Respondent looks to the Board contract bar doctrine in representation cases.7 Specifically, it invokes the settled policy that “in order for a contract to constitute a bar, it must be sufficient on its face, without having to resort to parol evidence and that the term of the agreement, as stated in the agreement, should be such that employees and outside unions may determine the appropriate time for filing representation petitions.”8
Respondent contends that if the 2005 Agreement is insufficient on its face to bar an election petition, the “same policy reasons underlie the analogous doctrine of conclusive presumption of majority support. For the contract to stand in the way of employees’ Section 7 rights, it has to be clear—i.e., sufficient on its face.” (R. Br. at 22).
Respondent’s contention is wrong, even assuming, arguendo, that the 2005 Agreement would not have barred the filing of a representation petition in January 2008. Contrary to Respondent’s contentions, the facial clarity the Board requires for invocation of the contract as a bar to an election petition—filed by employees or a rival union—is not germane to the determination of whether the employer—a contracting party—is barred by its own agreement from unilaterally withdrawing recognition from the union during the initial 3 years of the contract. The irrebuttable presumption of majority support bars an employer’s withdrawal of recognition based on lack of employee support for the union for the first three years of a contract, regardless of whether the contract’s written provisions are clear or ambiguous. See, Cook County School Bus, Inc., 333 NLRB 647, 653 (2001). Indeed, the irrebuttable presumption of majority support is effective to bar withdrawal of recognition even when a contract is oral and unexecuted. Young Women’s Christian Association (YWCA), 349 NLRB No. 78 (2007).
This difference reflects the “crucial distinction between employees challenging a union’s representational status by asking the Board to hold an election and an employer withdrawing recognition from a union unilaterally.” YWCA, supra, slip op. at 2. As the Board in YWCA explained:
[t]he Board, with court approval, has repeatedly
stated that the decertification election process, with the safeguards it provides
for Section 7 rights, is the preferred method of resolving questions regarding
the employees’ support for an incumbent union.
See Levitz, supra at 723,
727. Employer self-help, by contrast,
has always been judged by different standards.
YWCA, 349 NLRB No. 78, slip op at 2 (footnote omitted).
Indeed, holding the parties to the “bargain
made” is not just settled Board precedent but a statutory command expressed in
Section 8(d)’s definition of the duty to collectively bargain. 29 U.S.C. § 158(d) (when a
collective-bargaining agreement is in effect “the duty to bargain collectively
shall also mean that no party to such contract shall [unilaterally] terminate
or modify such contract”). With its
holding in Shaw’s Supermarkets,
the Board cabined the policy of holding employers and unions to their
bargain, limiting it to three years in the face of an actual showing of a
union’s loss of majority support. At the
same time, Shaw’s Supermarkets reaffirmed
the aspect of the policy relevant here: that of holding employers and unions to
their bargain during the initial three years of a contract, notwithstanding a
union’s loss of majority support during that time. That the contract’s written form may be
inadequate to bar the filing of a decertification petition is not
relevant. As explained in YWCA, “the distinction that the Board makes between the effect
of an unwritten, unsigned agreement concerning, on the one hand, the processing
of a decertification election petition, and, on the other, an employer’s
withdrawal of recognition, is fully consistent with the Board’s duty to balance
stability in collective-bargaining relationships against the effectuation of
employees’ representational desires.”
In any event, the rationale for the Board’s requirement that a contract be written, signed, and its duration unambiguous on its face in order for the contract to bar an election petition is wholly inapplicable to the irrebuttable presumption of majority support that precludes an employer from withdrawing recognition from a union during the life (up to three years) of the contract. As reflected in Bob’s Big Boy Family Restaurants, 235 NLRB 1227, 1228 (1978), and Union Fish, 156 NLRB 187 (1965), two contract bar cases highlighted by Respondent, the rationale for refusing to find that an ambiguous contract bars petitions filed by employees or outside unions, turns on the fact that—as nonparties to the agreement—employees and outside unions that might want to file an election petition must rely on the written contract to determine the appropriate time to file.9 This rationale does not apply to withdrawals of recognition during the term of the agreement by a contracting party. The latter implicates the policies of Section 8(d). Indeed, in Tinton Falls Conva Center, 301 NLRB 937, 939 (1991), distinguishing the policies of Section 8(d) from the policies of the representational contract bar doctrine, the Board rejected a claim such as that advanced by Respondent here:
Section 8(d) provides that when a collective-bargaining agreement is in effect, “the duty to bargain collectively shall also means that no party to such contract shall [unilaterally] terminate or modify such contract.” . . .
The Respondent's contention fails to take account of the different purposes served by
the contract-bar rule and the policies of Section 8(d). As the Board explained in Union Fish, supra, 156 NLRB at 191, its
contract-bar rule is designed to accommodate two objectives—giving the parties
to a contract a "reasonable period" of "industrial stability
free from petitions seeking to change the bargaining relationship," while,
at the same time providing "employees the
opportunity to select bargaining representatives at reasonable and predictable
intervals." The second objective
cannot easily be achieved if petitioning employees must go beyond the face of a
collective-bargaining agreement to determine whether it is in effect and for
what period. Ibid. The policy of Section 8(d), made clear by its express terms,
is simply to require parties to abide by collective-bargaining agreements to
which they have mutually agreed. This policy would be disserved if a party
could clearly agree to a contract and then escape abiding by its commitment on
the ground that the evidence of its agreement consisted, in part, of parol
evidence.
Spectrum cannot escape abiding by its commitment to the contract it entered into on grounds that the evidence of its agreement consists in part of parol evidence. As one of two parties negotiating the contract, and as one of two parties creating the ambiguity, Spectrum has no grounds for relying upon a facial ambiguity to claim it misunderstood the term of this Agreement, and therefore should be allowed to unilaterally withdraw recognition and back away from the deal it struck with the union during the first three years of the contract.10
I would add that Respondent’s fulminations about employee free choice being thwarted by the presumption of majority support are not so much wrong, as one sided, and unavailing. The Board’s concern with employee free choice has already been factored into its rules governing unilateral employer withdrawal of recognition and the rules governing employee election petitions. For a host of reasons, the latter “with the safeguards it provides for Section 7 rights, is the preferred method of resolving questions regarding the employees’ support for an incumbent union. Employer self-help, by contrast, has always been judged by different standards.” YWCA, 349 NLRB No. 78, slip op. at 2. Thus, it is no surprise that employee free choice may be expressed through election petitions filed with the Board at times when unilateral employer withdrawal of recognition is not a permissible method of vindicating employee free choice. The Board is concerned with employee free choice. But employee free choice is not the only goal of the Act. Another fundamental goal of the Act is the stability of labor relations. The Act’s primary aim of fostering industrial peace and stability is buttressed by the balancing of these twin goals of employee free choice and the stability of labor relations. The irrebuttable presumption of majority support enjoyed by a union for the life of a contract (up to three years) represents the Board’s balancing of these goals of the Act. Shaw’s Supermarkets, supra, slip op. at 3 (“policy goals of stability in labor relations and employee freedom of choice . . . can best be satisfied and reconciled . . . by permitting the Respondent, which was in possession of untainted evidence of the Union’s actual loss of majority support, to withdraw recognition from the Union after the third year of a contract of longer duration”).
Thus, application of the irrebuttable presumption of majority support to bar employer withdrawal of recognition is not limited by doctrines that might call into question whether the 2005 Agreement could constitute a bar to a representation petition. The identification of an ambiguity in the written contract’s beginning date does not mean that the employer is free to unilaterally withdraw recognition during the first three years of the contract.11
b. Repudiation of the 2005 Agreement
It is not seriously disputed that beginning January 8, 2008, Respondent announced and implemented a repudiation of the 2005 Agreement. For instance, on January 8, the day after the withdrawal of recognition, the Hospital announced to employees that “[t]he current UAW contract will no longer be in effect.” Immediately after the withdrawal of recognition, the Hospital stopped deducting dues from employee paychecks, and announced that instead of the utilizing the collectively-bargained grievance procedure, “[m]oving forward, you will now be covered by the KCC Fair Treatment Policy, which gives you the right to appeal disciplinary action.” Subsequently, the Hospital denied a grievance filed under the 2005 Agreement, taking the position that the dispute would be handled under its nonbargained fair treatment policy.
This represents a basic repudiation of the
collective-bargaining relationship and constitutes a repudiation of the 2005
Agreement under Board precedent. Oak Cliff-Golman Baking Co., 207 NLRB
1063, 1064 (1973), enfd. mem. 505 F.2d 1302 (5th Cir. 1974). Such conduct violates Section 8(a)(5) and, derivatively,
Section 8(a)(1).
c. Unilateral changes in terms and conditions of employment
1. 8(a)(5) violations
In accordance with its view that the Union no
longer needed to be recognized as the employees’ bargaining representative, and
that the 2005 Agreement no longer needed to be followed, subsequent to the
repudiation and withdrawal of recognition the Hospital announced and
implemented a series of unilateral changes in terms and conditions of employment. These changes, involving changes to wage
rates, the wage structure, and changes to the eligibility waiting period for
short term disability benefits, were all subjects admitted by Respondent to be
mandatory subjects of bargaining, admittedly implemented without bargaining
with the Union and without the
2. 8(a)(3) violations
The General Counsel alleges that the unilateral changes implemented by Respondent in March 2008 were motivated by the employees’ union and concerted activities and intended to discourage the same. The complaint maintains that these changes constituted antiunion discrimination violative of Section 8(a)(3) of the Act.
It is difficulty to miss the alacrity and
enthusiasm with which Respondent moved after withdrawing recognition to
solidify the antiunion majority in the bargaining unit. However, having found that the unilateral
changes were violative of Section 8(a)(5), I find it unnecessary to pass on
whether this conduct also violated Section 8(a)(3) because this additional finding would not materially
affect the remedy. Goya Foods of Florida, 350 NLRB No. 74, slip op 1. fn. 3 (2007).
d. Independent 8(a)(1) violations
The General Counsel alleges that the Hospital’s post-withdrawal-of-recognition communications with employees regarding its withdrawal of recognition, its current and anticipated changes in terms and conditions of employment, and its repudiation of the 2005 Agreement, constituted independent violations of Section 8(a)(1) of the Act. I agree.
The day after withdrawing recognition Spectrum
wrote to each bargaining unit employee, referring to them as “Former UAW Staff”
and explaining the new nonunion situation.
Spectrum held meetings for all employees beginning January 8, where, in
addition to explaining the withdrawal of recognition it stated that wage and
benefit changes were in the offing. It
advertised “Town Hall Meetings” at which “Former UAW Staff” could “hear about
the exciting changes that will affect you!”
At these meetings Respondent announced significant unilateral wage and
benefit improvements, and raised the possibility of future wage adjustments in
October 2008. On March 19, Respondent
mailed a letter to “All Former UAW Staff” reviewing the recent pay raises and
reminding employees “that all [Spectrum] non-union staff normally receives a pay increase in
October,” and promising to “also move you to the October pay cycle. . . . As such, you may expect another compensation
adjustment in October.”
The
gist of this extensive campaign was to publicize and demonstrate to employees
the new nonunion status of the facility.
As the Board explained in Windsor Convalescent Center of North Long
Beach, 351 NLRB No. 44, slip
op. at 13–14 (2007), a case
involving a successor employer that unlawfully refused to recognize the union:
“to tell employees that there was no union when, in fact, there was,
undermined the Union’s representative role” and, therefore, constituted an
independent violation of Section 8(a)(1).
The analysis is unchanged even if we
assume that Spectrum believed it was acting legally when it announced and implemented
the facility’s nonunion status. Windsor Convalescent Center, supra.
In this case, the 8(a)(1) violation includes the
announcement of anticipated further wage increases in October. The General Counsel alleges that the promise of a future wage increase was
implicitly premised on employees being and remaining nonunion. However, the tie to nonunion status was
explicit. The wage increase was
explicitly linked to the “Former UAW Staff” being moved to the “non-union
staff” pay cycle. This also violates Section
8(a)(1).
Conclusions of Law
1. Respondent Spectrum Health-Kent Community Campus is an employer within the meaning of Section 2(2), (6), and (7) of the Act.
2. Charging Parties, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL–CIO, and its Local 2600 (collectively Union) are labor organizations within the meaning of Section 2(5) of the Act.
3. At all times since about October 1999 and
continuing through January 7, 2008, when Respondent unlawfully withdrew
recognition from the Union, the
All full-time and regular part-time employees occupying the classifications of Activity Aide, Administrative Services Tech, Assessment Counselor, BS & MSW Social Worker, Carpenter, Cashier, CNA (Certified Nurses Aide), CNA-Restorative, COTA (Certified Occupational Therapy Assistant), Cook, CSR Technician, Customer Service Representative, Environmental Services Tech I, Environmental Services Tech II, Food Service Team Leader, Food Service Worker, Laundry/Linen Tech, Licensed Practical Nurse, LPN-Restorative, Maintenance Repair Worker, Medical Secretary, Nursing Tech, Occupational Therapist, Primary Counselor, Receptionist, Recreational Technician, Recreational Therapist, Restorative Technician, Shipping/Inventory Worker, Support Counselor, and Unit Support Assistant employed by Respondent at its Kent Community Campus facility; but excluding all executive, supervisory, confidential, professional, irregular, seasonal, and temporary employees, guards, student interns, all employees classified as Registered Nurses, and all other employees.
4. Respondent and the
5. Respondent violated Section 8(a)(1) and (5) by withdrawing recognition from the Union as the collective bargaining representative of the bargaining unit of employees described above, as of January 7, 2008.
6. Respondent violated Section 8(a)(1) and (5)
of the Act by refusing to adhere to and repudiating its collective-bargaining
agreement with the
7. Respondent violated Section 8(a)(1) and (5) and 8(d) of the Act, by implementing unilateral changes in terms and conditions of employment covered by the parties’ 2005 Agreement during the term of the agreement without the Union’s consent, including changes to wage rates, the wage structure, and changes to the eligibility waiting period for short term disability benefits.
8. Respondent violated Section 8(a)(1) of the Act by informing employees that the facility was nonunion and by promising employees that it will increase wages in the future if they remain nonunion employees.
9. The unfair labor practices committed by Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that Respondent has engaged in
certain unfair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act. Respondent must
recognize the
Respondent shall make whole its employees for
losses in earnings and other benefits which they may have suffered as a result
of Respondent's repudiation of and refusal to adhere to the
collective-bargaining agreement, and its unlawful unilateral changes, with such
losses to be calculated in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971). Interest
on all such sums shall be computed as prescribed in
accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987).
Respondent shall reimburse the
Respondent shall post an appropriate informational notice, as described in the attached appendix. This notice shall be posted in Respondent’s facility or wherever the notices to employees are regularly posted for 60 days without anything covering it up or defacing its contents. When the notice is issued to Respondent, it shall sign it or otherwise notify Region 7 of the Board what action it will take with respect to this decision. In the event that, during the pendency of these proceedings, Respondent has gone out of business or closed the facility involved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by Respondent at any time since January 7, 2008.
Respondent shall, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended12
Order
Respondent Spectrum Health – Kent Community
Campus,
1. Cease and desist from:
a. Failing and refusing to adhere to the
collective-bargaining agreement reached with the
b. Failing and refusing to recognize and bargain
with the
All full-time and regular part-time employees occupying the classifications of Activity Aide, Administrative Services Tech, Assessment Counselor, BS & MSW Social Worker, Carpenter, Cashier, CNA (Certified Nurses Aide), CNA-Restorative, COTA (Certified Occupational Therapy Assistant), Cook, CSR Technician, Customer Service Representative, Environmental Services Tech I, Environmental Services Tech II, Food Service Team Leader, Food Service Worker, Laundry/Linen Tech, Licensed Practical Nurse, LPN-Restorative, Maintenance Repair Worker, Medical Secretary, Nursing Tech, Occupational Therapist, Primary Counselor, Receptionist, Recreational Technician, Recreational Therapist, Restorative Technician, Shipping/Inventory Worker, Support Counselor, and Unit Support Assistant employed by Respondent at its Kent Community Campus facility; but excluding all executive, supervisory, confidential, professional, irregular, seasonal, and temporary employees, guards, student interns, all employees classified as Registered Nurses, and all other employees.
c. Failing and refusing to bargain with the
Union as the representative of its employees in an appropriate bargaining unit
by making unilateral changes in their terms and conditions of employment
without the consent of the
d. Informing employees that the facility was nonunion and that it will increase wages in the future as long as they remain nonunion employees.
e. In any like or related manner interfering with, restraining or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act.
2. Take
the following affirmative action which is necessary to effectuate the purposes
of the Act:
a. Recognize
the
b. Upon request of the Union, adhere to the
collective-bargaining agreement reached with the Union, restoring and giving effect
to its terms retroactive to April 13, 2005, or as otherwise required by the
terms of the collective-bargaining agreement, and continuing those terms and
conditions in effect unless and until changed through collective bargaining
with the Union. If no such request is
made by the Union, bargain upon request with the
c. Upon request of the
d. In the absence of a collective-bargaining agreement, before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of employees in the following above-described bargaining unit.
e. Make all affected employees whole, with interest, in the manner set forth in the remedy section of this Decision and Order, for any loss of earnings and other benefits suffered as a result of Respondent’s repudiation of and refusal to adhere to the collective-bargaining agreement, and its unilateral changes after repudiation of the collective-bargaining agreement.
f. Reimburse the
g. Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, make available at a reasonable place designated by the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of the records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
h. Within 14 days after service by the Region,
post at its facility in
i. Within 21 days after service by the Region, file with the Regional Director of Region 7 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply with the provisions of this Order.
Dated,
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency
of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose
representatives to bargain with us on your behalf Act together with other
employees for your benefit and protection
Choose
not to engage in any of these protected activities
We will
not refuse to recognize and bargain with the
We will
not repudiate or refuse to adhere
to the collective-bargaining agreement entered into with the
We will
not make unilateral changes to employees’ terms and conditions of
employment during the term of a collective-bargaining agreement without the
consent of the
We will not inform employees that this facility is nonunion and we will not promise employees that we will increase wages in the future as long as they remain nonunion employees.
We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Federal law.
We will,
upon request by the Union, adhere to the collective-bargaining agreement
effective April 13, 2005, giving effect to its terms retroactive to April 13,
2005, and continuing those terms and conditions in effect unless and until
changed through collective bargaining with the Union. If no such request is made by the Union, we
will, upon request, bargain with the
We will,
upon request of the Union, rescind any unilateral changes to employees’ terms
and conditions made without consent of the
We will,
recognize the
We will make all
affected employees whole, with interest, for any loss of earnings and other
benefits suffered as a result of our repudiation of and refusal to adhere to
the collective-bargaining agreement reached with the Union April 13, 2005. we will reimburse the
Spectrum Health –
[1] Effective
midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh
delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group,
all of the Board’s powers in anticipation of the expiration of the terms of
Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman
and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.
[2] The Respondent
states that the judge’s rulings, findings, and conclusions demonstrate bias and
prejudice. On careful examination of the
judge’s decision and the entire record, we are satisfied that the Respondent’s
contentions are without merit.
[3] In adopting the
judge’s decision, we do not rely on his finding that the January 1, 2005 date
on the contract’s cover was an inadvertent mistake.
Member
Schaumber agrees that the term of the collective-bargaining agreement was
ambiguous, and thus consideration of parol evidence was appropriate. Although Member Schaumber does not find the
parol evidence conclusive, it is sufficient to meet the General Counsel’s
burden in this case.
[4] Member
Schaumber does not agree with the view expressed in Caterair International that an affirmative bargaining order is “the
traditional, appropriate remedy” for an 8(a)(5) violation. He agrees with the District of Columbia
Circuit that a case-by-case analysis is required to determine if the remedy is
appropriate. Alpha Associates, 344 NLRB 782, 787 fn. 14 (2005). He recognizes, however, that the view expressed
in Caterair International represents
extant Board law. See Flying Foods, 345 NLRB 101, 109 fn. 23
(2005).
1 This bargaining unit consisted of the
following:
All
full-time and regular part-time employees occupying the classifications of
Activity Aide, Administrative Services Tech, Assessment Counselor, BS & MSW
Social Worker, Carpenter, Cashier, CNA (Certified Nurses Aide),
CNA-Restorative, COTA (Certified Occupational Therapy Assistant), Cook, CSR
Technician, Customer Service Representative, Environmental Services Tech I,
Environmental Services Tech II, Food Service Team Leader, Food Service Worker,
Laundry/Linen Tech, Licensed Practical Nurse, LPN-Restorative, Maintenance Repair Worker, Medical
Secretary, Nursing Tech, Occupational Therapist, Primary Counselor,
Receptionist, Recreational Technician, Recreational Therapist, Restorative
Technician, Shipping/Inventory Worker, Support Counselor, and Unit Support Assistant
employed by Respondent at its Kent Community Campus facility; but excluding all
executive, supervisory, confidential, professional, irregular, seasonal, and
temporary employees, guards, student interns, all employees classified as
Registered Nurses, and all other employees.
2 Although the petition is not in the
record, the General Counsel concedes,
and the Union does not dispute, that the petition indicated that the employees
did not want to be represented by the
3 Referring to this language, Respondent
contends (R. Br. at 13):
its
clarity is such that it resists further argument. It states what it states. What more can be said? . . . . It requires no interpretation, evaluation or
scrutiny. It states the term of the Agreement,
in plain language, to all interested parties.
4 As the General Counsel points out, while
the cover page lists the “Date of Agreement” as January 1, 2005, through March
31, 2008, the contract more specifically sets forth the “effective date” of the
contract as April 13, 2005, and the “termination” date as April 1, 2008.
5 Those familiar with collective bargaining will
acknowledge that such errors are commonplace given the mass of paperwork and
time pressure involved. Indeed, review
of the 2005 Agreement reveals at least one other, surely inadvertent, example
of holdover language from the 2002 Agreement.
Section 3 on page 2 of the 2005 Agreement provides that dues deductions
shall be made from paychecks “effective the first pay period beginning in
2002.”
6
Respondent contends that the General Counsel’s failure to call a union
bargainer to explain the January 1 date warrants an adverse inference in
Respondent’s favor. I decline to make
such an adverse inference, just as I do not make one based on Respondent’s
failure to call any witnesses from its negotiating committee to explain the
January 1 date. While Respondent’s sole
witness testified that no one on the Hospital negotiating committee (including
the outside counsel who was the chief negotiator) was still employed by the
Hospital, there was no suggestion that all (or any) of these people were
unavailable to testify. Although
after-the-fact negotiator testimony about “what the parties intended” is
fraught with opportunity for self-serving testimony, I agree that it might have
been helpful to have testimony from negotiators regarding the development of
the controverted language. However, such
testimony is not required. The record is
more than adequate to make a ruling on the term of the 2005 Agreement.
7 The Board’s contract bar doctrine is an
administrative device adopted by the Board that provides generally that only a
written and signed labor agreement bars the processing of an election
petition. Appalachian Shale Products.,
8 Cooper
Tire & Rubber Co., 181 NLRB 509 (1970);
South Mountain Healthcare, 344
NLRB 375, 375–376 (2005) (“Given the conflict among the various effective
dates, we find that the [contract] does not serve as a bar to the petition
because third-parties cannot discern the appropriate time for filing a representation
petition”). See also, Coca-Cola Enterprises, Inc., 352 NLRB
No. 123, slip op. at 2 (2008) (“It is well-settled Board law that without clear
effective or expiration dates, the [agreement] cannot serve as a bar to the
petition because third-parties would be unable to determine the appropriate
time for filing a petition”).
9 In Bob’s
Big Boy, the Board’s holding turned on the likelihood that “employees as
well as outside unions . . . would rely on the dates contained on the cover of
the contract.” Bob’s Big Boy, supra at 1228.
In Union Fish, 156 NLRB at
191–192, the Board explained that it
looks to the contract’s
fixed term or duration, because it is this term on the face of the contract to
which employees and outside unions look to predict the appropriate time for
filing of a representation petition. . . .
It was only this date to which the employees and other interested parties
could predict with certainty the appropriate time for the filing of a petition,
and indeed, the Employee Petitioner did in fact rely on this date in filing the
decertification petition herein.
10
Actually, Spectrum makes just such an argument.
Contending (R. Br. at 22–23), that “[a]ll parties in labor relations
deserve and require clarity,” it points out that “in this case, those
responsible for determining the term of the Agreement and complying with the
requirements of the Act were not at the bargaining table.” Spectrum’s effort to present itself as a
third-party to its own agreement is not compelling. Spectrum, not its former agents, is the
contracting party and bound by the 2005 Agreement.
11
I note that it is far from clear that the 2005 Agreement would not stand as a
bar to the filing of an employee representation petition with the Board. Although it is true that, under the Board’s
contract bar rules, the existence of the contract, and its term, must clearly
be discernible from the four corners of the contract, inadvertent errors do not
serve to undermine the contract bar. See, The Youngstown Osteopathic Hospital Ass’n,
216 NLRB 766 (1975) (it is clear when the current contract is considered in the
context of bargaining history that the final agreement is for a fixed term of 3
years, notwithstanding the final booklet prepared by employer stated that the
contract continued for 8-1/2 years); Consolidated
Brick Co., 127 NLRB 914 (1960) (“[parties’] failure to delete the March 31, 1959, termination date set
forth in the 1957 contract, in our opinion, was an inadvertence which did not
serve to convert the new agreement into one of indefinite duration, as urged by
the Petitioner”). To the extent the Agreement’s
cover page date of January 1, 2005, is considered an inadvertent error, and I
have found that it was—the effective/termination dates in the contract clearly
provide the term of the Agreement and a contract bar would be effective. However, I need not resolve the question of
whether the 2005 Agreement would have barred a representation petition. Regardless of the answer to that question,
the Hospital’s withdrawal of recognition was unlawful because—notwithstanding
any ambiguity on the face of the 2005 Agreement—the withdrawal, in fact, occurred
during the first three years of the contract’s term, a period in which the
Union enjoyed an irrebuttable presumption of majority support.
12
If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
13
If this Order is enforced by a judgment of a