Unpublished Disposition, 935 F.2d 275 (9th Cir. 1991)

MEMORANDUM^** 

The NLRB seeks to enforce its order requiring appellant Fountain Valley Hospital ("Hospital") to bargain with the United Nurses Association ("Union"). Hospital argues that Union was improperly certified to bargain because it failed to receive a majority vote. Hospital's tally of votes varies from the NLRB's because Hospital claims several of the decisive votes came from employees who were not eligible to vote in the union election. The question presented is whether the NLRB improperly disregarded the stipulation between Hospital and Union specifying which employees would be eligible to vote.

Congress has mandated that the "Board shall decide ... the unit appropriate for the purposes of collective bargaining." 29 U.S.C. § 159(b); NLRB v. Marin Operating, Inc., 822 F.2d 890, 893 (9th Cir. 1987). "Defining appropriate bargaining units 'involves of necessity a large measure of informed discretion, and the decision of the Board, if not final, is rarely to be disturbed.' " Marin, 822 F.2d at 893 (citations omitted). If the parties have stipulated to a bargaining unit, the Board is bound by the stipulation. See NLRB v. Sonoma Vineyards, Inc., 727 F.2d 860, 865 (9th Cir.), cert. denied, 469 U.S. 836 (1984). On the other hand, if the stipulation is ambiguous and the Board determines that there was no meeting of the minds as to its interpretation, the Board is entitled to employ a de novo approach to determine which employees are eligible to vote. NLRB v. Detective Intelligence Service, 448 F.2d 1022, 1025-26 (9th Cir. 1971).

The stipulation between Union and Hospital provided that the following employees would be eligible to vote:

All full time; regular part-time; per-diem/resource/nonscheduled employees provided they have worked or were scheduled to work an average of one shift per week, or two shifts per 14 days over a period of 90 days preceding the payroll period for eligibility.

Excerpts of Record, at 21.

In the NLRB proceedings, Union and Hospital disagreed over the meaning of this stipulation. Hospital claimed that the language required an employee to work at least two shifts each two-week pay period in order to be eligible to vote in the election. Union claimed that the stipulation required only an average of one shift per week over the entire 13-week period. After finding that the parties had never reached a meeting of the minds on the meaning of the provision, the Hearing Officer applied the NLRB's rule that, when the objective intent of a stipulation cannot be discerned, "the Board resorts to the community of interest doctrine to aid its resolution of the [dispute]." NLRB v. Television Signal Corp., 268 NLRB 633, 115 LRRM (BNA) 1086, 1087 (1984). Applying the Board's "community of interest" test, the Hearing Officer ruled that any employee who averaged at least four hours per week over the 13-week eligibility period was eligible to vote.

Hospital claims that even though the NLRB found the parties had not reached agreement as to the number of shifts to be worked for voting eligibility, the NLRB Hearing Officer improperly disregarded the fact that the parties had reached agreement that "shift," rather than hours worked, was the proper unit of analysis. Because a "shift" could be anything from four to twelve hours under the stipulation, the NLRB should have counted only those employees who worked an average of one "shift" per week, instead of all those who worked an average of "four hours" per week.

Hospital's contention that the NLRB did not interpret the stipulation according to the intent of the parties is unpersuasive. As the NLRB points out, it was entitled to employ a de novo approach using its community of interests test once it concluded that there was no agreement between the parties as to the meaning of the stipulation. See Detective Intelligence Service, 448 F.2d at 1025.

We therefore GRANT the Board's application for enforcement of its order.

SO ORDERED.