Highlands Regional Medical Center

National Labor Relations Board - Board Decisions

Mar 24, 1999

327 N.L.R.B. 1049 (N.L.R.B. 1999)

HIGHLANDS REGIONAL MEDICAL CENTER 1049
Highlands Hospital Corporation d/b/a Highlands Re-
gional Medical Center and District 1199, The
Health Care and Social Service Union, SEIU,
AFL–CIO. Case 9–RC–17212
March 24, 1999
ORDER DENYING REVIEW
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND BRAME
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel,
which has considered the Employer’s request for review
of the Regional Director’s Order Denying Motion (a
copy of which is attached as an appendix). The request
for review is denied as it raises no substantial issues war-
ranting review. The Employer’s request for a stay of the
election is also denied.

APPENDIX
ORDER DENYING MOTION
On February 10, 1999, the Petitioner filed the petition in the
above-captioned matter, pursuant to Section 9(c) of the Na-
tional Labor Relations Act, herein called the Act, seeking to
represent a collective-bargaining unit consisting of all full-time
and regular part-time registered nurses (RNs) employed by the
Employer. On February 24, 1999, the Employer and the Peti-
tioner entered into a Stipulated Election Agreement, herein
called the Agreement, which was approved by the undersigned
on February 25, 1999. Pursuant to the terms of the Agreement,
the parties agreed that the Employer is engaged in the operation
of an acute care hospital and agreed to the conduct of an elec-
tion on March 25, 1999, in the unit described below, herein
called the Unit, which they agreed was appropriate for purposes
of collective bargaining:

All registered nurses, including charge nurses employed by
the Employer at its 5000 Ky Route 321, Prestonsburg, Ken-
tucky facility, but excluding assistant vice-presidents of nurs-
ing, clinical and other patient service managers, house super-
visors, RN circulators in surgery (OR 1st floor), clinical liai-
son, manager of education, staff development education, in-
fection control employee health nurse, diabetic education
CME program coordinator, UR case manager, case manager,
discharge planner, certified registered nurse anesthetists,
PACU charge nurse, dieticians, pharmacists, physicians, em-
ployee health nurses, office clerical employees, service and
maintenance employees, LPNs, technical employees, business
office clericals, other professional employees, guards and su-
pervisors as defined in the Act. 1

In addition, the parties entered into a separate written voter
eligibility agreement on February 24, 1999, specifically naming
the employees who were employed in the excluded job classifi-
cations and agreeing that these individuals are not eligible to
vote in the election in this matter.2

1 There are approximately 92 RNs employed in the Unit as de-
scribed in the Agreement.
2 Although the terms of this voter eligibility agreement do not ex-
pressly provide that the agreement is final and binding on the parties, I
find that it is informative insofar as establishing that the parties were in
full agreement concerning the composition of the Unit at the time they
entered into the Stipulated Election Agreement.
Thereafter, on March 5, 1999, the Employer filed with me an
Employer Petition to Revoke Approval of or to Modify Elec-
tion Stipulation Agreement (the Employer’s Motion). In its
Motion, the Employer requests that the undersigned revoke
approval of the Agreement or, in the alternative, modify the
Agreement to describe the appropriate collective-bargaining
unit by including certain previously excluded classifications of
RNs as follows:

All full-time and regular part-time registered nurses employed
by the Highlands Regional Medical Center at its site located
at 5000 Ky Rt. 321, Prestonsburg, Ky, including staff regis-
tered nurses, CRNAs, UR Case Manager, Case Manager,
Discharge Planner, Infection Control Nurse, nurse educators
and O.R. Circulators, but excluding managers, supervisors,
confidential employees, and guards as defined under the Act.

The Employer then identifies 17 employees who are em-
ployed in the previously excluded classifications and who, it
contends, would be eligible to vote in the election if the
Agreement were modified as it proposes. I note that the names
of all 17 employees appear on the voter eligibility agreement
executed by the parties on February 24, 1999, as individuals
who are not eligible voters.
In its Motion, the Employer further requests permission to
withdraw from the Agreement in the event I decline its request
to revoke approval of the Agreement or modify the appropriate
collective-bargaining unit described therein.
The Petitioner opposes the Employer’s Motion and requests
that I proceed to conduct an election in accordance with the
Agreement.
In support of its Motion, the Employer maintains that certain
of its RNs, including the operating room nurses, the staff de-
velopment educator, the diabetic educator, the utilization re-
view manager, the case manager, the discharge planner, the
infection control nurse and the certified registered nurse anes-
thetists (CRNAs), herein called the disputed RNs, are neither
managerial nor supervisory employees, that they share a com-
munity of interest with the RNs in the Unit as currently de-
scribed in the Agreement, and that they should be included in
the Unit. The Employer asserts that the Disputed RNs hold
positions which are routinely included in registered nurse bar-
gaining units by the Board and that their exclusion from the
Unit, as set forth in the Agreement, would result in the creation
of a potentially unrepresented residual unit within the RN unit
resulting in the proliferation of bargaining units in a health care
setting which is contrary to the Board’s Rule on the structure of
bargaining units in the health care industry. The Employer
further maintains that because CRNAs are excluded from the
Unit, the Unit set forth in the Agreement is inconsistent with a
Decision and Direction of Election issued on July 18, 1995, in
Case 9–RC–16570 following a formal hearing involving the
same parties in which the Acting Regional Director found that
the CRNAs should be included in a unit of the Employer’s
RNs.
The Board’s Final Rule on Collective-Bargaining Units in
the Health Care Industry, herein called the Rule, is set forth at
29 CFR Part 103, 54 Fed. Reg. 16336, 284 NLRB 1586,
(1989). Section 103.30, paragraph (a) thereof provides that a
unit of all registered nurse is one of eight units which may be

327 NLRB No. 188
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1050
appropriate for bargaining in acute care hospitals. Assuming
that the Employer is correct in its assertion that the Unit ex-
cludes RNs who are statutory employees, it appears that the
Unit does not conform to paragraph (a) and that in the absence
of the Agreement, the Board, if called upon to do so, might well
conclude that the Disputed RNs should appropriately be in-
cluded in a unit of registered nurses.
Paragraph (d) of Section 103.30, however, permits regional
directors to approve stipulations for bargaining units not in
conformity with paragraph (a), provided that the stipulated unit
is otherwise acceptable. In its comments on the proposed Rule,
the Board, at 284 NLRB 1572–1573, explained the desirability
of allowing parties to stipulate to nonconforming units and
concluded that such stipulations should be permitted unless
they are statutorily prohibited or violate other established Board
policies. The Board specifically noted that to the extent such a
stipulation may later result in the creation of a residual group of
unrepresented employees, it would “address their representation
concerns as it would those of other groups of residual employ-
ees present in partially organized acute care hospitals—on a
case-by-case basis applying the rules insofar as practicable.”
The Board has long held that election agreements are con-
tracts binding on the parties who executed them, that they may
be set aside only in limited circumstances and that they will be
enforced provided that their terms are clear, unambiguous and
do not contravene expressed statutory exclusions or established
Board policy. T & L Leasing, 318 NLRB 324, 325 (1995);
Business Records Corp., 300 NLRB 708 (1990). After ap-
proval by the Regional Director, election agreements may not
be modified by either a party or an agent of the Board without
the agreement of the other parties. T & L Leasing, supra. Ad-
ditionally, Section 11098 of the NLRB Casehandling Manual
for Representation Proceedings states that “once an election
agreement has been approved, a party may withdraw therefrom
only upon an affirmative showing of unusual circumstances or
by agreement of the parties.” See also Sunnyvale Medical Cen-
ter, Inc., 241 NLRB 1156 (1979), and Unifemme, Inc., 226
NLRB 607 (1976).
I note that because the disputed RNs are specifically ex-
cluded from the Unit set forth in the Agreement, the Agreement
is clear and unambiguous as to their unit placement. The Em-
ployer’s Motion does not assert that any unusual circumstances
have arisen since the approval of the Agreement nor does the
Employer contend that the Unit set forth in the Agreement con-
travenes any statutory exclusions. The Employer asserts, in
substance, that if the status of the disputed RNs were litigated,
the Board would include them in the appropriate unit, because
such RNs are normally included in RN units. However, with
respect to election agreements, it is the Board’s practice to
honor concessions made in the interest of expeditious handling
of representation cases even though the Board may have
reached a different result upon litigation. Hollywood Medical
Center, 275 NLRB 307 (1985); Pyper Construction Co., 177
NLRB 707, 708 (1969). Thus, the questions as to whether the
Disputed RNs share a sufficient community of interest with
other RNs in the Unit to warrant their inclusion therein or
whether the Board would include them in the appropriate unit
upon litigation represent an improper line of inquiry and are
issues not relevant to determining whether the Agreement
should be enforced. Business Records Corp., supra at 708 and
fn. 6. 3
Even accepting the validity of the Employer’s assertions that
the Board, upon litigation, would include the Disputed RNs in a
unit of registered nurses, that their exclusion would result in the
creation of a residual unit and that the Unit is contrary to a prior
unit determination made in an earlier case, it does not follow
that the Unit in the Agreement is contrary to established Board
policy or represents unusual circumstances which would war-
rant a refusal to enforce the Agreement. In adopting the Rule,
it is clear that the Board contemplated and approved of the
creation of non-conforming units by agreement of parties and
with the knowledge that the creation of such non-conforming
units could result in the proliferation of residual units. Further,
it does not follow that the prior different determination made in
Case 9–RC–16570 renders the Agreement contrary to estab-
lished Board policy. The prior determination was a result of
litigation while the Unit was the result of an election agree-
ment. As noted above, an election agreement providing for a
unit different from one which would be determined through
litigation may nonetheless be enforced. 4
In view of the foregoing, I conclude that the Employer’s Mo-
tion fails to present facts sufficient to establish that the Agree-
ment contravenes statutory provisions or is contrary to estab-
lished Board policy or to establish that unusual circumstances
exist which would warrant either vacating the Agreement or
permitting the Employer to withdraw from the Agreement.
Accordingly, I having duly considered the matter,
IT IS HEREBY ORDERED that the Employer’s Motion and
its request for permission to withdraw from the Agreement is,
and they hereby are, denied.
IT IS FURTHER ORDERED that the election in this matter
be conducted pursuant to the terms of the Agreement.

3 The Employer relies on Sunrise, Inc., 282 NLRB 252 (1986); Val-
ley View Hospital, 252 NLRB 1146 (1980); and Business Records
Corp., supra, in support of its assertion that the Agreement is contrary
to established Board policy. However, in Sunrise and Valley View, the
Board refused to enforce election agreements because they provided for
the inclusion of professional employees in a unit of nonprofessionals
without their consent, contrary to the provisions of Sec. 9(b)(1) of the
Act. In the instant matter, the Employer does not assert, nor does it
appear, that the exclusion of the disputed RNs is contrary to any statu-
tory provision. Business Records Corp. involved a question of the unit
placement of an inspector in a stipulated unit which specifically in-
cluded inspectors. The Board found that based solely on the clear and
unambiguous language of the stipulation, the inspector should be in-
cluded in the unit absent evidence that he was a member of an excluded
category of employees, concluding that it would be improper to now
determine through a hearing whether the inspector shared a community
of interest with other unit employees.
4 The cases cited by the Employer for the proposition that prior unit
determinations may not be altered absent a showing of changed circum-
stances, Holiday Inn of Victorville, 284 NLRB 916, 926 (1987); Kansas
City Terminal Elevator Co., 269 NLRB 350 (1984); Crown Zellerbach
Corp., 246 NLRB 202 (1979); and Newspaper Production Co., 205
NLRB 738, 740 (1973), are unavailing as those cases all involve issues
as to whether substantive changes could be made to the composition or
scope of existing certified or recognized bargaining units unlike the
situation in the instant case where there is no history of collective bar-
gaining in the unit sought by the Petitioner.