Presbyteriam Hospital in the City of New YorkDownload PDFNational Labor Relations Board - Board DecisionsApr 19, 1979241 N.L.R.B. 996 (N.L.R.B. 1979) Copy Citation In 8(a)(5) ofice 2(6) 11. 2(5) Ill. Slipulaled Facls 1, Thercollective- union-secu- pro~ision.~ ' unlt chaufleurs. 2(11) 1 Sec. Sec. 2 111 employees Agreement uniformly em- 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Presbyterian Hospital in the City of New York andSpecial and Superior Officers Benevolent Asso- ciation. Case 2-CA-15226 April 19, 1979 DECISION AND ORDER Upon a charge duly filed on October 31, 1977, by Special and Superior Officers Benevolent Association, herein called the Union, the General Counsel for the National Labor Relations Board, by the Regional Di- rector for Region 2, on December 14, 1977, issued and served on the parties a complaint and notice of hearing. substance, the complaint alleges that Re- spondent violated Section and (1) of the Act by refusing to remit to the Union fees and dues mon- eys deducted from its employees pay as required by its collective-bargaining agreement with the Union without notice to the Union, without affording the Union an opportunity to bargain with respect to such conduct, and without consent of the Union. On De- cember 28, 1977, Respondent filed an answer admit- ting in part, and denying in part, the allegations in the complaint. Thereafter, a hearing was conducted on April 4, 1978, before Administrative Law Judge Richard D. Taplitz. At the hearing all parties entered into a stipu- lation in which they petitioned the Board to approve the transfer of this proceeding to the Board and waived the making of findings of fact and conclusions of law by an Administrative Law Judge and the issu- ance of an Administrative Law Judge's Decision. The parties further stipulated that the entire record of this proceeding shall consist of the charge, complaint, an- swer, the stipulation with exhibits attached thereto, and the transcript of the proceeding. Upon conclu- sion of the hearing, counsel for the General Counsel, without objection of the other parties, moved that the proceeding be transferred directly to the Board in Washington. D.C.. for decision. Thereafter, the Ad- ministrative Law Judge granted counsel for General Counsel's motion. On August 2, 1978, the Board ap- proved the stipulation of the parties and ordered the case transferred to the Board, advising the parties that it would consider the briefs which they had pre- viously submitted to the Board. Upon the basis of the stipulation, the briefs, and the entire record in this proceeding, the National La- bor Relations Board makes the following: I. THE BUSINESS O F RESPONDENT Respondent, a New York corporation with its prin- cipal and place of business in the city of New York, is a nonprofit hospital engaged in providing inpatient and outpatient medical and health care ser- vices. During the calendar year ending December 31, 1976, Respondent derived gross revenues in excess of $60 million and purchased goods and supplies valued in excess of $50,000 which were shipped to it directly from firms located outside the State of New York. The parties stipulated, and we find, that Respon- dent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section and (7) of the Act. and that it will effectuate the policies of the Act to assert jurisdiction herein. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Union is a labor organization within the meaning of Section of the Act. THE ALLEGED UNFAIR LABOR PRACTICES A. The In 1974, the Union was certified by the National Labor Relations Board as the exclusive representative of Respondent's protective hospital security officers in a unit appropriate for the purposes of collective bar- gaining with respect to wages, hours of employment, and other terms and conditions of employment.' The Union and Respondent were parties to successive col- lective-bargaining agreements effective from Novem- ber 8, 1974. until August 3 1976, and from Septem- ber 1, 1976, until August 31, 1978. baigaining agreements contained valid a rity provision2 and a valid dues-checkoff That was: All full-time and regular part-time protective hospital security officers employed by Respondent at its West 168th Street, New York, New York. facility. excluding the security department director. investigators. assistant supervisors, sergeants, volunteers, temporary em- ployees. all other employees, and all supervisors as defined in Section of the Act. I and of art. of the collective-bargaining agreements state as follows: I. All present covered by this Agreement who, on the date of execution of this Agreement. are members of the Association in good standing shall. during the term of this Agreement, as a condition of continued employment. maintain their membership in the Association in good standing by tendering the periodic dues uniformly required as a condition of retaining membership in the Association. All present em- ployees covered by this Agreement who are not members of the Associ- ation as of the date of execution of this Agreement shall become mem- bers of the Association within thirty (30) days after the execution date of this Agreemenl and shall thereafter. as a condition of continued em- ployment. maintain their membership in the Association in good stand- ing during the term of this by tendering the initiation fees and the periodic dues required as a condition of acquiring and retaining membership in the Association. 2. All new employees covered by this Agreement hired after the date of execution of this Agreement shall. as a condition of continued HOSPII'AL CITY the 19, 19, employee^.^ Diaz, ploymmt, thim- (30th) term wntin- maintain periodic ducl retaining 1 Sec. fonn Happital wag- dusa aa Asno- ciation. so month, togetha Sccial wag- ma&. first rnade Assxiation dues setting the May Pizzulli, 8(a)(5) & (I & & union-secu- rity untiI & 8(a)(5) 997 PRESBYTERIAN IN T H E O F N E W YORK On March 3, 1977, an election was conducted in Case 2-RD-883 on the question of whether the em- ployees in the appropriate unit wished to be repre- sented by Union for the purposes of collective bargaining. A majority of the employees who voted in that election voted not to have the Union represent them any longer as their exclusive representative for the purposes of collective bargaining.- hereafter, the Union filed timely objections to conduct affecting the results of the election. On May 1977, the Acting Regional Director for Region 2 issued his supplemen- tal decision and certification of results in which the Union was decertified by the Board as the exclusive representative of the employees in the appropriate unit. During the period of March I through May 1977. Respondent deducted dues for the months of March, April, and May 1977 from the pay of certain unit However, Respondent did not remit the dues moneys collected to the Union, and the Union did not consent to Respondent's failure to re- mit such dues moneys deducted from the employees during that period. B. Additional Facts At the hearing Respondent's labor relations spe- cialist, Robert testified without contradiction as follows: Sometime during March 1977, after the elec- tion, several employees approached him and said that since the Union no longer represented them they wanted to have the dues moneys reimbursed to them. Without notifying the Union, Respondent made the decision not to remit the moneys to the Union. Re- spondent has no dues authorization revocations from the period of December 9, 1976, to May 1977, in its files. Respondent has not remitted the moneys to the become members of the Association not later than the eth day following the beginning of such employment and shall thereafter during the of this Agreement. as a condition of ued employment, their membership in the Association in good standing by tendering the initiation fees and the uniformly required as a condition of acquiring and membership in the Association. I of an. V of the collective-bargaining agreements states as follows: I . Upon receipt of a written authorization from an employee in the hereto annexed as Exhibit A. the shall. pursuant to such authorization, deduct from the due said employee each month and remit to the Association, regular monthly fixed by the The Hospital shall give the Association a cheek in the amount of the deduction made once each with a list of the names and Security numbers of the employees from whose such deductions were Such deductions shall be rnade only from the wages due the employee on the pay day of each month provided that a proper authorization is on file with the Hospital. Such deduction shall be in the amount certified in writing by the Association to the Hospital as the amount of the initiation fee and the current monthly owed by the employee. 'The parties included in their stipulation lists forth names of employees for whom Respondent deducted dues moneys for the months of March. April. and 1977 and the amounts of such deductions. employees and does not claim any interest in the dues moneys collected. Union Office Manager who is responsible for administering the collective-bargaining agreement between the Union and Respondent, testified without contradiction that the Union did not receive any dues authorization revocations from the guards employed by Respondent during the period December 9, 1976, through May 19, 1977. C. Contentions of the Parties The General Counsel contends that an employer's unilateral repudiation of a dues-checkoff provision of a collective-bargaining agreement violates Section and (1) of the Act. Citing, inter alia, W. P. Ihrie Sons, Division of Sunshine Biscuits, Inc., 165 N LRB 167 9673, and Albert Van Luit Company, 234 NLRB 1087 (1978). the General Counsel asserts that an employer is required to deduct and remit dues of the unit employees through the date of certification of the results of the election and not merely through the date of the election. General Counsel also argues that while W. P. Ihrie was a deauthorization case, the Board in that case and in Albert Van Luit Company specifically held that the foregoing rule applies in decertification cases. Respondent claims no beneficial interest in the dues moneys collected from March 1 through May 19, 1977. It asserts that, faced with competing claims from the employees and the Union for the same mon- eys, it has not been able to determine, in good faith, to whom the moneys should be paid and has been unable to remit the moneys to either the employees or the Union for fear of liability should it erroneously disburse the money. Respondent acknowledges the general rule that in deauthorization cases provisions remain in effect certification of results of the election, not merely until the election, and that an affirmative deauthorization vote permits employees to revoke their dues-checkoff authoriza- tions but does not automatically cancel such authori- zations. However, Respondent contends that, con- trary to the position of the General Counsel, W. P. Ihrie, and Albert Van Luit Company do not extend the principles applicable in deauthorization cases to decertification cases. Respondent requests the Board to determine the disposition of the moneys withheld without finding that any unfair labor practices have been committed and without imposing any interest on the moneys withheld. D. Discussion and Conclusions We agree with the General Counsel that Respon- dent violated Section and (I) of the Act by & werito collective- B ~ a r d . ~ B(bX1XA) union- B(aX5) J ' 1307. Lyons Im., 218 Board duuthorization require rmployeu feer duca. despite were results certified. exception rule results are certification here. instnnt case, nor does appear from that employeen R e spondent were hired aher Accord- d u a for employes, pursuant their authorizntions, merely return for their repreamtation See Albert & Conpaw, sqra. dues- 8(aX5) Act.8 2(6) 2(5) 9(a) prgtective supervisors, 8 e.g., Shen-Mar faod Products, Inc., 221 Terri- Products, Inc., UX) conten& that here remit for a h dcccrtifica- tion seemingly inwnnistent Madine Conpaw, 186 Madine, Bonrd held ployer Scc. 8(a)(2) wllcctive-bargaining union-security provision duer-eheckolfprovision, Bond further required employer reimburse employ- as pursuant wllective-bargaining agreement a h date however, Board violation relied employer neognize incumbmt h brm certijhfat the collmive-bargaining repmenIative." Further, Bond refmed bnrgnin na;cwrily arose rival therefore appears Board's requiring mmburrment inadvertent. Modine our hmby overruled. 998 DECISIONS O F NATIONAL LABOR RELATIONS BOARD refusing to remit to the Union the dues money de- ducted from the employees' pay during the period of March 1 through May 19, 1977, in derogation of the valid dues-checkoff provision in its collective-bargain- ing agreement with the Union. In so doing, we find, as urged by the General Counsel, that Respondent was obligated to deduct dues and to remit them to the Union through the date of the certification of results of the election and not merely through the date of the election. Thus, as the Board stated in Trico Products Corporation:' The well-established rule concerning election re- sults is that they are not effective until certifica- tion. [Citing, inter alia, Albert Van Luit Com- pany,' supra]. To hold otherwise is to invite instability during the transition period when the employees' choice of representative is in doubt. Election results are not alwavs determinative. If the status of the parties change immedi- ately upon the tally of ballots the possibility of sustained objections and rerun elections might lead to a number of changes in the bargaining relationship before a representative is finally certified. The general rule that the elec- tion results are not effective until certification lends certainty and stability to the process since the parties may safely maintain the status quo until the representation question is conclusively resolved by the In Trico Products, the Board held, inter alia, that the incumbent union did not violate Section and (2) of the Act by attempting to enforce the security clause of its contract with the employer be- yond the date of the incumbent union's loss in an election involving a rival union. Although the instant case, unlike Trico Products, involves Section of the Act and a decertification election, the underlying principles and the basic considerations applied in that former case also are applicable here. We therefore shall adhere in the instant case to the general rule that election results are not effective until certification? Thus, the fact that the Union did not receive a ma- jority of the votes cast in the decertification election on March 3, 1977, did not as of that date alter the 238 NLRB 1306 (1978). Id, at 'We note that in Apparel, NLRB 1172 (1975). the decided that a union which had l a t a vote wuld not new to join it and pay initiation and the fact that objections pending and the of the election had not yet been Lyons Apparel, however, constitutes an isolated to the general that election not effective until and is inapplicable Thus, in the no party contends, it the evidence, any of the on whose behalf deducted dues the date of the election. ingly, the payment of these made to was in continued by the Union. Van Luit Union's status as collective-bargaining representative of Respondent's employees. Rather, until May 19, 1977, the date on which the issuance of the certifica- tion of results with finality the question concerning representation, the Union remained the statutory rep- resentative of the employees, and the collective-bar- gaining agreement between the parties remained ef- fective. Therefore, until May 19, 1977, Respondent was obligated to refrain from making unilateral changes in the terms of the collective-bargaining agreement. Accordingly, we find that Respondent, by failing to remit to the Union dues moneys it withheld from employees' pay pursuant to the valid checkoff provision of the collective-bargaining agree- ment, without notice to or bargaining with the Union, and without its consent, engaged in unilateral con- duct in violation of Section and (1) of the 1. The Presbyterian Hospital in the City of New York is an employer engaged in commerce within the meaning of Section and (7) of the Act. 2. Special and Superior Officers Benevolent Asso- ciation is a labor organization within the meaning of Section of the Act. 3. At all times relevant herein, until May 19, 1977, Special and Superior Officers Benevolent Association was the exclusive representative of all the employees in the appropriate unit set forth below for purposes of collective bargaining with respect to wages, rates of pay, hours of employment, and other terms and con- ditions of employment within the meaning of Section of the Act: All full-time and regular part-time hospital security officers employed by Respon- dent at its West 168th Street, New York, facility, excluding the security department director, in- vestigators, assistant sergeants, chauffeurs, volunteers, temporary employees, S a , NLRB 1329 (1976); flex NLRB 3 (1972). Respondent a finding that it is obligated to to the Union dues moneys withheld the period the date of the election would be with Manufacturing NLRB 629 (1970). In the that an em- violated by giving effect to a agree- ment with the incumbmt union, which included a and a beyond the date of an election which the rival union won. The the to for moneys withheld to the on and the of the election. We note, that the in finding the therein, on the fact that the had contin- ued to the union "even though the [rival union] won the election and [sic] (Emphasis supplied.) the to the employer's duty to exclusively with the rival union-a duty which only upon the certification of the union. It that the finding of the violation and its as of the date of the election in that c a r was In any event, to the extent that is inconsistent with decision herein it is 2(11) duescheckoff collectivabargaining 8(ax5) 2(6) 8(aX5) Cotpora- tion, (1977)? lqc) Presbyterian 1. dues-checkoff collective- (b) co- * Aa indiuccd above, Rapondent rcquatc the determine diepaition moneys withheld findins practice hu been ammittcd impains interat mon- eya withheld. 'lh.1 Rclpondent'a unduft bem due ita i ~ b i l - ity, good fiith, determine w u mnit diminiaha u h d d nature ita doa w m n t fiudin$ t h t Funher- m m , we perceive unwd circumst.ncu h m wamntiq dcpu~ure curtomuy imposing interet monetary a w d cusr kind. Rapondent', rcquau. Contrary paition Gencnl Counsel, &all interat rbs dua ILt hprcent nre. Rather. order interat anid money8 "adjuncd prim intern1 nte" net Flori& S r d Corpwarim, WIU guar- dues- (b) "Appen- dix."1° event that lh i~ Copy with citationCopy as parenthetical citation