Century City Hospital

National Labor Relations Board - Board Decisions

Jul 10, 1975

219 N.L.R.B. 52 (N.L.R.B. 1975)

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Century City Hospital and Hospital and Service Em-
ployees Union, Local 399 , Service Employees Inter-
national Union, AFL-CIO, Petitioner. Case 31-
RC-3013
July 10, 1975
DECISION AND DIRECTION
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered objections and deter-
minative challenges in an election held on January
17, 1975,' and the Regional Director's report 2 rec-
ommending disposition of same. The Board has re-
viewed the record in light of the exceptions and
briefs, and hereby adopts the Regional Director's
findings3 and recommendations.
DIRECTION
It is hereby directed that, as part of his investiga-
tion to ascertain the representative for the purposes
of collective bargaining with the Employer, the Re-
gional Director for Region 31 shall, pursuant to the
Board's Rules and Regulations, within 10 days from
the date of this Decision and Direction open and
count the ballots cast by Marlene Bitters, Glen Etow,
Calvin Saito, Genevieve Henderson, Felipe Wong,
Paul Boehm, Gwen Yount, Judi Chance, Robin
Gabe, John Saenger, and Robert Solomon and there-
after cause to be served on the parties a revised tally
of ballots, including therein the count of those 11
ballots. If those 11 ballots are determinative of the
results of the election, regardless of the ballots cast
by William Brown and Steven Newman, the Region-
al Director shall, pursuant to the Board's Rules and
Regulations, issue the appropriate certification.
IT IS FURTHER DIRECTED that, if the ballots of Wil-
liam Brown and Steven Newman are sufficient in
number to affect the results of the election as shown
by the revised tally of ballots, the Regional Director
i The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election . The tally was Ill for, and 103 against , the Peti-
tioner , there were 14 challenged ballots.
2 The relevant portion of the Regional Director 's report is attached hereto
as an Appendix.
3 In adopting the Regional Director 's recommendations , we do not adopt
his conclusion regarding the applicability of Milchem, Inc, 170 NLRB 362
(1968), to all conduct that could conceivably be engaged in by election
observers . Under the appropriate circumstances such conduct could come
within the prohibitions established in Mdchem, supra. See, e .g., General Dy-
namics Corporation, 181 NLRB 874 (1970), Modern Hard Chrome Service
Co., 187 NLHB 82 (1970).
shall cause to be conducted a hearing for the purpos-
es of resolving evidence pertaining to the issues
raised by the challenges to the ballots cast by Brown
and Newman.
IT IS FURTHER DIRECTED that, if a hearing is neces-
sary, the Hearing Officer designated for the purpose
of conducting such hearing shall prepare and cause
to be served on the parties a report containing resolu-
tions of the credibility of witnesses, findings of fact,
and recommendations to the Board as to the disposi-
tion of said challenges. Within 10 days from the date
of issuance of such report, any party may file with
the Board in Washington, D.C., eight copies of ex-
ceptions thereto. Immediately upon the filing of such
exceptions, the party filing the same shall serve a
copy thereof on the other parties and shall file a copy
with the Regional Director. If no exceptions are filed
thereto, the Board will adopt the recommendations
of the Hearing Officer.
IT IS FURTHER DIRECTED that the proceeding herein
be, and it hereby is, remanded to the Regional Direc-
tor for Region 31 for further proceeding consistent
herewith, including the arranging of such hearing if
necessary, and that the Regional Director be, and he
hereby is, authorized to issue notice thereof.
MEMBER KENNEDY, dissenting:
My colleagues here adopt the Regional Director's
findings and recommendation, inter alia, that the
Employer's objections to the election be overruled.
One of those objections, Objection 3, alleges that two
of Petitioner's election observers clearly breached the
Board's Milchem rule.4 I do not agree with the major-
ity. In my view, the Employer has presented suffi-
cient evidence to require a remand to the Regional
Director and a hearing on this objection.
The Employer presented at least two witnesses to
the Regional Director to support its objection. Ac-
cording to one witness, during the afternoon session
of the balloting Petitioner's observer Scott engaged
voters in conversation as the voters entered the poll-
ing area. Another witness stated that she saw Scott
conversing with a voter as she entered the polling
area during the morning session. Further, according
to the Employer's observer, Petitioner's observer
Vasquez asked her at least twice during the afternoon
voting session how she was going to vote and why
she was not voting for the Union. Both Scott and
Vasquez deny making any of the remarks attributed
to them beyond normal greetings to acquaintances.
The Regional Director recommended that the ob-
jection be overruled on the ground that the Milchem
restriction on parties' remarks to employees who are
in line to vote is not applicable to their election ob-
4 Milchem, Inc, 170 NLRB 362 (1968).
219 NLRB No. 6
CENTURY CITY HOSPITAL
servers, and on the additional grounds that the sub-
stance of Scott's and Vasquez' remarks were innocu-
ous and could not have affected the outcome of the
election . My colleagues properly reject the-first part
of the Regional Director 's rationale , because the law
of Milchem clearly applies to observers , who are, of
course , agents of the parties.
Nevertheless , the majority overrules this objection
on the second basis advanced by the Regional Direc-
tor, i .e., that the substance of the Petitioner 's observ-
ers' remarks could not have affected the outcome of
the election . Such an analysis was explicitly rejected
by the Board in Milchem . There the Board held that:
In our prior decisions dealing with the effect
of conversations between parties to the election
and employees preparing to vote , we have not
enunciated a clear standard against which to
measure such conduct . Careful consideration of
the problem now convinces us that the potential
for distraction , last minute electioneering or
pressure , and unfair advantage from prolonged
conversations between representatives of any
party to the election and voters waiting to cast
ballots is of sufficient concern to warrant a strict
rule against such conduct , without inquiry into
nature of the conversations. . . . [Emphasis sup-
plied] [ 170 NLRB 362.]
Accordingly, I would direct a hearing on the
Employer's Objection 3 to resolve the conflict in tes-
timony as to the frequency and length of the conver-
sations between Petitioner 's observers and employees
who were waiting to vote . And if , after a hearing, it
were found that prolonged conversations did in fact
occur , I would set aside the election , without inquir-
ing into the nature of those conversations.
APPENDIX
3. Ray Scott and Alex Vasquez , two of Petitioner's
observers , engaged in electionering [sic] at or near
the polling areas.
The election was conducted on the Employer's
premises in the doctors ' lounge , located on the sec-
ond floor of the hospital in the administrative -office
area of the hospital . The election was conducted
from 6:30 a .m. to 8 a.m. and from 2 : 30 p.m . to 4 p.m.
Scott was present at both voting sessions and, togeth-
er with an Employer observer, served as a line watch-
er.
One of the Employer's witnesses , an observer,
states that during the afternoon session he was stand-
ing next to Scott outside the entrance to the voting
53
area . According to the witness , as employees came
down the hall to enter the lounge to vote , Scott spoke
to some in Spanish . The witness states that he does
not speak or understand Spanish , therefore, he does
not know what Scott said . He also states that Scott
asked one employee in English about another em-
ployee who needed a ride to the polls , and that Scott
said that another employee might be able to bring
her in . Scott then continued the conversation in
Spanish . This witness also states that he heard Scott
ask another employee , "How did you vote?" and the
employee replied , "None of your business ." The wit-
ness admits that Scott , when speaking English, said
no more than "Hello," or told employees that the
lounge was the voting place , except for the above-
recited remarks.
Another Employer witness states that she ap-
proached the voting area about 7:15 a.m . As she ap-
proached , she heard Scott say, "Anything for more
money , I'm for more money ," apparently not direct-
ing his remark to any particular employee , though at
least one other employee may have been close
enough to Scott to have heard the remark.
Scott denies making any of the remarks attributed
to him or questioning any employee about how he or
she voted . He admits saying , "Hello," and "Como
esta?" ("How are you?") in Spanish, and "Thank
you" in both English and Spanish to voters as they
left. Scott states under oath that his Spanish is limit-
ed to a few phrases such as greetings . The Employer
did not offer any witnesses who could state what
Scott said in Spanish.
Alex Vasquez served as the Petitioner 's observer at
the table where voters' names were checked off. The
Employer's observer at the afternoon session states
that Vasquez whispered to her, "How are you going
to vote?" She says later he asked her , "How come
you're not voting for the Union?" Vasquez under
oath denies making any remarks attributed to him,
saying he had been instructed not to make such re-
marks.
None of the foregoing incidents was brought to the
attention of either of the two Board Agents then con-
ducting the election.
The Board's Milchem 5 restriction on parties' re-
marks to employees who are in line to vote is not
applicable to observers . General Dynamics Corp., 181
NLRB 874. Of the incidents involving Scott, I find
that only one, his remark , "Anything for more mon-
ey; I'm for more money ," causes me concern. The
remainder are either innocuous or directed at an em-
ployee after the employee cast the ballot . Assuming,
arguendo, that Scott's remarks were electioneering, I
' 170 NLRB 362.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that they were isolated , and were not made in
the context of continuing electioneering following a
Board Agent's admonition against such conduct. Cf.
Modern Hard Chrome Service Co., 187 NLRB 82. The
remarks attributed to Vasquez were made to but one
employee , another observer . No evidence was of-
fered that any other employee overheard his remarks.
For the reasons given regarding Scott, I find that
Vesquez' remarks, if made, were also isolated and
could not affect the outcome of the election. There-
fore , I conclude that the remarks attributed to Scott
and Vasquez, if made, were insufficient grounds to
set the election aside, and I will recommend that
Employer's Objection 3 be overruled.