Windham Community Memorial Hospital

National Labor Relations Board - Board Decisions

Sep 10, 1993

312 N.L.R.B. 54 (N.L.R.B. 1993)

54
312 NLRB No. 16
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 This proceeding was consolidated with Cases 34–RC–1128, 34–
RC–1129, and 34–RC–1130. No exceptions were filed to the RD’s
recommentations in those cases. Accordingly an unpublished order
will issue adopting those recommendations pro forma.
2 In the absence of exceptions, we adopt pro forma the Regional
Director’s recommendations to overrule the Employer’s Objections 1
and 2 and to overrule the challenges to the ballots of Margaret An-
drews, Faith Brouillard, and Dennis Carter. 3 See generally Tribune Co., 190 NLRB 398 (1971).
Windham Community Memorial Hospital and
Hatch Hospital Corporation and Federation of
Nurses and Health Professionals, CSFT, AFT,
AFL–CIO, Petitioner. Case 34–RC–11271
September 10, 1993
DECISION AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has considered
a determinative challenge in an election held January
14, 1993, and the Regional Director’s report and rec-
ommendation on its disposition.2 The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 53 ballots were cast,
of which 24 were for the Petitioner, 25 were against
the Petitioner, and 4 were challenged.
The Board has reviewed the record in light of the
exception and brief, and has decided to affirm the Re-
gional Director’s findings and recommendations only
to the extent consistent with the Decision and Direc-
tion.
The central issue in this case is whether Jack Boyko
met the requirements of the parties’ eligibility stipula-
tion. The Regional Director found that Boyko did not
do so and, therefore, recommended sustaining the chal-
lenge to his ballot. The Petitioner argues that, Boyko
met the requirements of the stipulation. We agree. Ac-
cordingly, we shall overrule the challenge to Boyko’s
ballot.
The essential facts are not in dispute. The parties en-
tered into a stipulation agreement which provided that
individuals classified as per diem employees would be
eligible to vote if they were regularly scheduled to
work 16 or more hours per week in at least 6 of the
13 weeks prior to the November 21, 1992 eligibility
date. In addition, at the preelection conference, the
Employer and the Petitioner entered into an agreement
that Boyko would be included in the unit if he were
otherwise eligible to vote.
The work schedules for the respiratory therapy de-
partment show that Boyko was scheduled to work 16
or more hours in 8 of the 13 weeks covered by the
parties’ stipulation. However, the Employer’s payroll
records show that Boyko actually worked 16 or more
hours in only 5 of the 13 weeks.
The Regional Director recommended that the Em-
ployer’s challenge to Jack Boyko’s ballot be sustained
because Boyko actully worked 16 or more hours in
only 5 of the 13 weeks covered by the stipulation. The
Regional Director found that Boyko did not meet the
eligibility requirements of the agreement, even though
Boyko was scheduled to work 16 or more hours in 8
of the 13 weeks covered by the stipulation. Noting that
the stipulation allows employees to vote if they were
regularly scheduled to work, the Petitioner contends
that Boyko’s entitlement to vote is based on his status
as a scheduled employee, and is not affected by his
failure to work the scheduled hours. We find merit in
this contention.
In cases where the parties have entered into a clear
and unequivocal written stipulation agreement, the
agreement is an expression of the parties’ intent and if
the agreement does not violate any express statutory
provisions or established Board policies the Board will
not override that expression of intent.3 In the instant
case, the stipulation has not been shown to violate any
statutory provision or established Board policy. It
unquivocally provides that those employees who are
scheduled for 16 more hours per week in at least 6 of
the 13 weeks coverd under the agreement are eligible
to vote. The stipulation makes no reference to hours
actually worked. The Regional Director’s conclusion
that Boyko is ineligible requires an interpretation that
goes beyond the plain meaning of the stipulation and
overrides the written expression of the parties’ intent.
We therefore overrrule the challenge to Boyko’s ballot.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 34 shall, within 14 days from the date of this De-
cision and Direction, open and count the ballot of Jack
Boyko, together with the ballots of Margaret Andrews,
Faith Brouillard, and Dennis Carter, serve on all par-
ties a revised tally of ballots, and issue the appropriate
certification,