Sunnyvale Medical Clinic, Inc.

National Labor Relations Board - Board Decisions

Apr 26, 1979

241 N.L.R.B. 1156 (N.L.R.B. 1979)

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sec. 11026.2(c)
11 . Representation
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunnyvale Medical Clinic, Inc. and Medical and Sci-
entific Professionals, National Maritime Union,
AFL-CIO, Petitioner. Case 32-RC-343
April 26. 1979
DECISION AND ORDER
Pursuant to a Stipulation for Certification Upon
Consent Election, approved June 2. an election
by secret ballot was conducted on June 23 in a unit of
professional medical Of approximately
eight eligible voters, no ballots were cast for Peti-
tioner, four ballots were cast for the Intervenor. and
three. ballots were cast against representation by ei-
ther labor organization. There were no challenged
ballots. On June 29 the Employer filed timely objec-
tions to the election.
Acting pursuant to Section 102.69 of the National
Labor Relations Board's Rules and Regulations, Se-
ries 8, as amended, the Acting Regional Director for
Region 32 caused an investigation of the objections to
be made and issued a Report and Recommendations
on Objections in which he recommended that the
Employer's objections be overruled in their entirety.
Subsequently, on September the Employer filed
"Exceptions to the Regional Director's Report and
Recommendations on Objections"and a brief in sup-
port thereof.' The Employer requests that the Board
sustain the exceptions, reject the Acting Regional Di-
rector's recommendations, set aside the election, and
order a hearing on the petition for certification, or, in
the alternative, order an evidentiary hearing in this
matter.
The petition in this case was filed on May 10. On
May the Regional Director issued a notice of hear-
ing, directing that a hearing be held on May 26. Prior
to May 26 the Employer and Petitioner agreed to en-
ter into an election agreement with the election to be
conducted on June 23. Accordingly, the hearing
scheduled for May 26 was indefinitely postponed.
Both the Employer and Petitioner executed the elec-
tion agreements and returned them to the Regional
Office. The election agreement was approved by the
Regional Director on June 2. On June 7 Engineers
Scientists of California, Marine Engineers Beneficial
Association, AFL-CIO, filed a petition in Case
covering the identical unit of employees as in
the election agreement in Case 32-RC-343 approved
by the Regional Director 5 days before. The showing
of interest submitted by Engineers Scientists of
All dates refer calendar year 1978.
Engineers Scientists of California, Marine Engineers Beneficial Associ-
ation. AFL-CIO. was permitted to intervene. discussed
The Employer has requested oral argument. This request is hereby
nied as the record, the exceptions, and the brief adequately present the issues
and the positions of the
California in support of its petition predated the ap-
proval of the election agreement. At the of the
approval of the election agreement, the
interest in the proceeding was unknown. The petition
filed by Engineers Scientists of California, with its
consent, was treated as a motion to intervene in Case
32-RC-343. The Region was administratively ad-
vised by representatives of Engineers & Scientists of
California that it was in agreement with the unit of
employees covered by the approved stipulation in
Case 32-RC-343 and with the arrangements for the
election. Accordingly, it requested the withdrawal of
the petition in Case 32-RC-371, which withdrawal
was approved. On June 14. the parties were notified
that the Intervenor would be accorded a place on the
ballot. On June the Employer requested permis-
sion to withdraw from the election agreement as it
contended, inter alia, that the intervention by Engi-
neers Scientists of California and its addition to the
ballot created "changed circumstances" and that it
would not have entered into the election agreement
had it known that both labor organizations would be
on the ballot. On June 20, the Employer was notified
that its request to withdraw from the election agree-
ment was denied and that the election would proceed
as scheduled. The election was conducted on June 23.
The Employer asserts, inter alia, in its objections
that the Region erred in proceeding to the election
after the interest of the Intervenor became known.
that the Intervenor should not have been afforded
place on the ballot or allowed to intervene in the case,
and that the Employer should have, therefore, been
permitted to withdraw from the election agreement.
The Employer further asserts that, because of internal
union conflicts involving the Petitioner the Inter-
venor, the decision of the Region to proceed to the
election resulted in an atmosphere of confusion which
destroyed the laboratory conditions under which rep-
resentation elections should be conducted.
We find merit in the Employer's contention that
the Regional Director erred in denying the Employ-
er's request for withdrawal from the election agree-
ment after the Intervenor had been accorded a place
on the This case presents an unusual factual
situation in that the Petitioner and Intervenor arose
from common origins under circumstances which
confused the identities of these two labor organiza-
tions. Prior to April 1978, Engineers and Scientists of
California (ESC) was a labor organization engaged in
representing various professional and technical em-
'While the Regional Director erred in denying the Employer's request to
withdraw from the election agreement intervention of Engineers
Scientists of California, Marine Engineers Beneficial Association. AFL-CIO.
we find that such intervention was proper upon the showing of pre-
dating the approval of the election agreement. in accord with
of the NLRB Casehandling Manual, Pan Proceedings.
CLINIC 1 157
DeFries
Bartolo.
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25,
Engineers
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Unifernrne
alia,
agree-
cir-
clrmstances
See sec. Casehandling 11. Repmenu-
tion i 8 intended to provide pmcedunl
puidnnce IUR than a8 statement
pmcedural mks.
' (1976). d m i i F.2d. (8th
SUNNYVALE MEDICAL
ployees in the San Francisco area and was under the
leadership of Henry Dwley and John Guay. During
the course of several representation proceedings, the
ESC was found not to be affiliated with the Marine
Engineers Beneficial Association (MEBA). In April
1978. the leadership of ESC changed from Dwley
and Guay to a group headed by C.E. and
Peter P. This labor organization then identi-
fied itself as Engineers Scientists of California. af-
filiated with the Marine Engineers Beneficial Associ-
ation (ESC-MEBA). Various litigation ensued,
including a complaint to recover possession of per-
sonal property filed by ESC against MEBA and a
cross-complaint filed by ESC-MEBA against Dooley,
Guay, and other parties.
Thereafter. the former officers of ESC formed

Medical
Scientific Professionals. National Mari-
time Union, AFL-CIO, the Petitioner herein. On
May 8, 1978, employees signed authorization cards
stating that they wished to be represented for pur-
poses of collective bargaining by the Medical and Sci-
entific Professionals. N.M.U.A. However, on May
1978 three employees sent a letter to the Petitioner
addressed to Warren Dougherty, Regional Director
for Petitioner, stating:
On May 8, 1978, you met with representatives of
the Medical Technologists employed at Sunny-
vale Medical Clinic, introducing yourself as a
representative of the and Scientists of
California (ESC-MEBA). It was brought to our
attention this week that you were dismissed by
ESC-MEBA on March 29. 1978, and are, in fact.
now with the National Maritime Union.
It is not our desire to be represented by the Na-
tional Maritime Union. Therefore, we hereby re-
scind authorization to be represented for pur- ,
poses of collective bargaining by you, Mr.
Dougherty, or any other member of the National
Maritime Union.
As mentioned above, the Intervenor, on June 7,
filed a petition accompanied by the appropriate
showing of interest for an election in the identical
unit. The parties were first informed on June 14, that
the Intervenor ESC-MEBA had been accorded a
place on the ballot. Accordingly, the Employer, on
June 19, promptly requested permission to withdraw
from the election agreement.
Under these circumstances, we find that it was an
abuse of discretion for the Regional Director, on June
20. to refuse the Employer's request. I t is the practice
and policy of the Board that a party may withdraw
from an election agreement. after approval of the
agreement, upon an affirmative showing of unusual
Here there is the unforeseen addition
of an intervenor whose relationship to the Petitioner
had the considerable potential for creating confusion
as to the identities of the two labor organizations on
the ballot. I t is this sort of convergence of complica-
tions which qualifies as an "unusual circumstance"
warranting the withdrawal of a party from an elec-
tion agreement.
Unlike our colleagues, we would not
overrule Unifemme, in reaching the result
herein. The employer and petitioner in had
entered into an election agreement, subsequently ap-
proved by the Regional Director, which specified, in-
ter the scope of the bargaining unit. Thereafter, a
second labor organization was allowed to intervene
and was accorded a place on the ballot. The employer
then requested to withdraw from the election
ment, contending in a letter to the Regional Director
that the intervention of the second labor organization
created a serious problem with regard to the bargain-
ing unit issue, that the employer and the petitioner
had reached certain "understandings"with regard to
the unit issues, and that the employer would not have
entered into the election agreement had it known the
intervenor would be a party to the election. The Re-
gional Director denied the employer's request. The
Board overruled the employer's subsequent objec-
tions and certified the intervenor as the collective-bar-
gaining representative for the unit employees. In the
later summary judgment proceeding the Board sum-
marily affirmed its finding that the participation of
the intervenor in the election did not prejudice the
employer's interests and that the denial of the em-
ployer's request to withdraw was not an abuse of dis-
cretion. The Board noted that the employer had the
right to challenge the eligibility of three persons who
were the subject of "understandings"between the em-
ployer and the petitioner and that the employer could
have communicated these "understandings" to the in-
tervenor. In addition. the Board observed that there
were no determinative challenges.
We are presented with significantly different
herein. While the challenge procedure
was available to Unifemme to deal with any prejudice
that may have befallen the employer because of the
intervention, there is no analogous device to insure
that the confusion over the identity of the labor or-
ganizations here would not prejudice the Employer.
It is the obvious potential for confusion with which
we are here concerned, as well as the question
whether it was an abuse of discretion for the Regional
11098 of the NLRB
Proceedings. a document which
operational to NLRB rather
Manual. Part
and
a binding of
226 NLRB 607 enforcement 570 230 Cir. 1978).
1 \58
sufficient
or
1s IS
9(b)
PENELLO
That
arguendo,
Unifernrnr7
Unifemrne.
Lrnifernme.
Unifernrne
employees-
trike.^
Ungernrne
Unifernme, and
9(c)(l)
voluntarify
stipulstions
Case-
affirmative It
1 L'nfimmr, Inc.. supra.
N.L.R.B. V. Unqemme, IW. , 570 ~ . 2 d . 230. 231, fn. Clr. 1978).
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director to deny the Employer's request to withdraw
from the election agreement. We find that the addi-
tion of the Intervenor to the ballot, under conditions
which created a grave possibility for confusion as to
the identities of the two labor organizations. resulted
in changed circumstances which were
grounds for granting the Employer's request to with-
draw from the election agreement. Accordingly, the
parties must be afforded the opportunity to enter into
a new agreement to participate in a preelection
hearing.
ORDER
I t is hereby ordered that the election conducted
herein on June 23. 1978, be, and i t hereby is, set aside.
FURTHER ORDERED that the Stipulation for
Certification Upon Consent Election approved by the
Regional Director for Region 32 on June 2, 1978, be,
and it hereby is, vacated.
I T IS FURTHER ORDERED that the case be, and i t
hereby is, remanded to the Regional Director for Re-
gion 32 for further proceedings in accordance with
Section of the Act and in accordance with this
Decision and Order.
MEMBERS and TRUESDALE, concurring:
We agree with our colleagues that the election
should be set aside and the stipulation vacated.
is where our agreement ends. First, we find no evi-
dence in the record that the voters were confused or
had any difficulty in sorting out the identity of the
two labor organizations involved herein. Secondly,
assuming, that some evidence of confusion
had been presented, we would find that the Regional
Director's refusal to allow the Employer to withdraw
from the stipulation was in accord with
and that we cannot find the Regional Director to
have abused his discretion unless we also overrule
We find unconvincing our colleagues' at-
tempt to distinguish the circumstances herein from
those in By arguing that the challenge pro-
cedure was available in to cure any preju-
dice to the employer while no similar device is avail-
able here to counteract the effect of the confusion, the
majority ignores the true nature of the controversy
therein. The employer's concern in Unifemme was not
that a few more employees would be allowed to vote,
but that the unit would include shipping
employees who, under the policies of the intervenor,
would severely disable the employer's business in the
even: of a The issue was one of unit scope,
and would not have been resolved by the challenge
I (8th
procedure. Thus, the availability of the challenge pro-
cedure in is irrelevant to the issues here.
Contrary to our colleagues, we would reject this
rationale and overrule it is on this
basis that we join our colleagues in vacating the stipu-
lation and setting aside the election. We would find
that the addition of an intervenor to a ballot is, of
itself, sufficient ground for granting a party's request
to withdraw from an earlier election agreement. Sec-
tion of the Act gives the parties the right to a
hearing:
Wherever a petition shall have been filed . . . the
Board shall investigate such petition and if it has
reasonable cause to believe that a question con-
cerning representation exists shall provide for an
appropriate hearing upon due notice.
However, the parties may. and often do, choose to
enter into a Stipulation for Certification Upon Con-
sent Election which agreement specifies the appropri-
ate unit, the date and place of election, and other
conditions regarding the conduct of the election. In
doing so, the parties forego the hearing by
entering into an agreement controlling all aspects of
the election. In addition, the parties hasten the resolu-
tion of questions concerning representation. This vol-
untary device has the further advantage of freeing the
Board from an overwhelming burden of cases by
avoiding, to a large extent, the need for Board review.
Thus, we must encourage voluntary to
accelerate the processes of justice and effectuate the
purposes of the Act. Our colleagues' approach to this
issue has the opposite effect. lcstead of allowing with-
drawal from the stipulation as a matter of course
when there is an additional labor organization on the
ballot, they would force all parties to proceed with
the election and to contest the results in a postelection
proceeding. At that stage, our colleagues would at-
tempt first to determine whether or not the character
of the Intervenor, or the genesis of the Petitioner, or
some other factor. would qualify as "usual circum-
stances." Then, if the situation so qualifies, all return
to square one and another election, after considerable
delay that could have been avoided by allowing the
parties either to renegotiate a stipulation at the outset
or to participate in the usual preelection hearing.
While the Board's Rules and Regulations do not
address the appropriateness of the withdrawal of a
party from an election agreement, the NLRB
handling Manual, Part 11, Representation Proceed-
ings, as noted by our colleagues, provides that a party
may withdraw from an election agreement upon an
showing of unusual circumstances. is a
reasonable observation that the addition of a second
labor organization is an unusual circumstance. Where
neither the Employer nor the Petitioner, at the time of
MEDlCAL
Unifemrne,
1159 SUNNYVALE CLINIC
execution of the stipulation, is aware of the interest of
the Intervenor, or of the possibility of a second labor
organization on the ballot, the parties must be given
the opportunity to withdraw from, or to renegotiate,
that agreement upon the intervention of the third
party. If the number of labor organizations on a bal-
lot is not an issue of significance to the parties, it is
difficult to understand what would be. In fact, the
Board found it necessary to treat with one aspect of
this problem some years ago. Thus, a provision was
added to the Board's election agreement that with-
drawal from the ballot of one of the labor organiza-
tion's signatories to the agreement does not vitiate the
agreement, but the Board's Internal Instructions note
that, if that provision is struck, such withdrawal will
vitiate the agreement upon request. Thus, the number
of labor organizations on the ballot is an essential
aspect of the agreement, as is the unit or the date of
the election, and cannot be unilaterally changed with-
out the assent of the original signers of the agreement.
Here the Employer voluntarily entered into an
agreement and promptly requested to withdraw
therefrom when notified that there would be a second
labor organization on the ballot. We would find,
without more, that it was an abuse of discretion for
the Regional Director to deny that request, and
would overrule to the extent inconsistent
herewith.