Ambigious Unit Stipulations

Regional Emergency Medical Services, 354 NLRB No. 20 (May 21, 2009), deals with an important principal of labor law.  How should the Board deal with a situation where it is unclear whether an employee should be included within a stipulated election agreement? As the Board explained, it applies the following standard:

 The three-part test set forth in Caesar’s Tahoe,
337 NLRB 1096 (2002), applies to the resolution of
challenged ballots in cases involving stipulated units.
Under this test, if the objective intent of the parties is
expressed in clear and unambiguous language in the unit
stipulation, then the Board will enforce the agreement. If
the language of the stipulation is ambiguous with respect
to an employee’s eligibility, then it is appropriate for the
Board to examine extrinsic evidence to interpret the
stipulation. If the intent of the stipulation still cannot be
determined, then the Board will decide the eligibility of
the challenged voter using traditional community-ofinterest
criteria. Id. at 1097. As discussed below, we
find that the language of the parties’ unit stipulation reflects
their clear and unambiguous intent to exclude contingent
employees. We therefore reverse the hearing
officer and sustain the challenge to Dibler’s ballot.

Mitchell H. Rubinstein