Beverly Manor Nursing Home

National Labor Relations Board - Board Decisions

Feb 26, 1993

310 N.L.R.B. 538 (N.L.R.B. 1993)

538
310 NLRB No. 80
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendation to sustain the challenge to employee
DeMaio’s ballot.
2 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
3 We agree with the hearing officer that Zacchini and Young are
ineligible to vote in the election because, as college students who
were expected to work only during college break periods, they were
casual, irregular part-time employees excluded from the unit. Crest
Wine & Spirits, Ltd., 168 NLRB 754 (1967).
The Employer contends that O’Connor quit 1 week before the eli-
gibility date. The record, however, shows that she was working as
a per diem employee on or before the eligibility date and was em-
ployed in that status on the day of the election. The parties stipulated
that she worked in that capacity 11.5 hours in the week prior to the
eligibility date and averaged over 7 hours weekly between the eligi-
bility and election dates. O’Connor is eligible because she was em-
ployed in a unit position on both the eligibility and the election
dates. Plymouth Towing Co., 178 NLRB 651 (1969).
Contrary to our dissenting colleague, we agree with the hearing of-
ficer’s application of the test set forth in Northern California Vis-
iting Nurses Assn., 299 NLRB 980 (1990), and Sisters of Mercy
Health Corp., 298 NLRB 483 (1990), and with her finding that
Aronson and O’Connor are eligible to vote in the election because
Aronson worked an average, and O’Connor worked a projected aver-
age, of more than 4 hours per week during the calendar quarter prior
to the eligibility date.
1 As I would sustain the challenges to the ballots of Aronson,
O’Connor, Zacchini, and Young, I need not pass on the voting eligi-
bility of Kelli Duffy. Her vote, under my view, is no longer deter-
minative of the election.
Beverly Enterprises-Massachusetts, Inc. d/b/a Bev-
erly Manor Nursing Home and Hospital Work-
ers Union, Local 767, Service Employees Inter-
national Union, AFL–CIO, Petitioner. Case 1–
RC–19817
February 26, 1993
DECISION AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held June 11, 1992, and the hearing offi-
cer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Elec-
tion Agreement. The tally of ballots shows 27 for and
28 against the Petitioner, with 6 challenged ballots.
The Board has reviewed the record in light of the
Employer’s exceptions1 and brief, and adopts the hear-
ing officer’s findings,2 conclusions, and recommenda-
tions.3
DIRECTION
It is directed that the Regional Director for Region
1, within 14 days from the date of this decision, open
and count the ballots of Susan Aronson, Kelli Duffy,
and Tina O’Connor, and thereafter prepare and cause
to be served on the parties a revised tally of ballots,
on which basis the Regional Director shall issue the
appropriate certification.
MEMBER OVIATT, dissenting.
At issue here is the voting eligibility of certain on-
call employees. Unlike my colleagues, I would sustain
the challenges to the ballots of Susan Aronson and
Tina O’Connor.
In Northern California Visiting Nurses Assn., 299
NLRB 980 fn. 6 (1990), and Sisters of Mercy Health
Corp., 298 NLRB 483 fn. 8 (1990), I stated my gen-
eral view that on-call nurses must regularly average 8
hours or more of work per week during the quarter
prior to the eligibility date in order to be eligible to
vote. This 8-hour rule would require an employee in
the health care industry to work the equivalent of an
average of one shift per week during the quarter to
qualify as a regular part-time employee. Such a re-
quirement would likely result in the exclusion of those
employees who are sporadically called in to fill the
balance of a shift of an employee who was released for
the remainder of her shift because of sudden illness or
some other personal reason. The 8-hour rule would
likely include only those on-call employees who are
regularly utilized to fill in for employees absent with
prior notice or for approved reasons, such as for vaca-
tion or funeral leave, and are thus usually considered
part of the regular staff. This 8-hour standard, I be-
lieve, is more likely to result in a rule for the health
care industry that is more compatible with the Board’s
historical standard to include regular part-time employ-
ees and to exclude from the unit temporary and non-
regular part-time employees as casuals. I would apply
the same requirements to the on-call nursing assistants
whose ballots were challenged in this case. Having
done so, I find neither Aronson nor O’Connor eligible
to vote. It is undisputed that neither averaged the re-
quired 8 hours of work per week. Having sustained the
challenges to Aronson and O’Connor and as I agree
with my colleagues and the hearing officer that the
challenges to voters Zacchini and Young should also
be sustained, I would certify the results of the elec-
tion.1