Chrill Care, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 2003

340 N.L.R.B. 1016 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1016
Chrill Care, Inc. and Home Health Care, 1199,
AFSCME, National Union of Hospital & Health
Care Employees, AFL–CIO. Case 22–RC–12218
November 20, 2003
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held August 1, 2002, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a stipulated election agreement.
The tally of ballots in a unit of approximately 412 eligi-
ble voters shows 174 for and 170 against the Union with
no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions1 and briefs and has adopted the hearing officer’s
findings2 and recommendations,3 and finds that a certifi-
cation of representative should be issued.
1. We agree with the hearing officer that the Employer
presented insufficient credible evidence to support its
Objection 2, which alleged that the Union engaged in
objectionable conduct by photographing employees who
came to the Employer’s premises to vote in the election.
The only evidence introduced regarding photography in
the vicinity of the Employer’s premises was vague and
contradictory. The evidence shows only that four indi-
viduals were milling in the vicinity, and some were tak-
ing photographs. Only one of the individuals was even
alleged to be a union agent. The record does not estab-
lish that this individual took photographs. Further, there

1 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendations to overrule Objections 4 and 5.
2 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a hear-
ing officer’s credibility resolutions unless a clear preponderance of all
the relevant evidence convinces us that they are incorrect. Stretch-Tex
Co., 118 NLRB 1359 (1957). We have carefully examined the record
and find no basis for reversing the findings.
The Employer has excepted to the hearing officer’s decision, assert-
ing that the decision evidences bias and prejudice. Upon our full con-
sideration of the entire record in these proceedings, we find no evidence
that the hearing officer prejudged the case, made prejudicial rulings, or
demonstrated bias against the Employer in his conduct of the hearing or
his analysis and discussion of the evidence.
In finding the Union’s conduct unobjectionable, Chairman Battista
and Member Liebman do not rely on the hearing officer’s characteriza-
tion of some of the Employer’s witnesses as hypersensitive or over-
reactive.
3 We adopt the hearing officer’s recommendation to overrule Objec-
tion 1, as we find, in agreement with the hearing officer, that the Em-
ployer has not adduced sufficient credible evidence to support its con-
tention that the Union engaged in intimidating or coercive conduct.
was no credited evidence indentifying who or what was
being photographed. Consequently, the record is devoid
of credited evidence that any of the voters were actually
photographed or were aware of any photographs being
taken. Clearly, this vague and contradictory evidence of
photography on the day of the election does not support a
finding of objectionable conduct. Because we find no
credible evidence that union agents took any photographs
or that unit employees were aware of any photography,
we reject the Employer’s reliance on Mike Yurosek &
Sons, 292 NLRB 1074 (1989), which requires a finding
of objectionable conduct, at a minimum, photography of
employees by union agents.4
2. We adopt the hearing officer’s recommendation to
overrule Objection 3, which alleged that the Union en-
gaged in objectionable conduct by picketing or otherwise
demonstrating on the date of the election at the Em-
ployer’s place of business, thus blocking or intimidating
employees who appeared to vote, and by recording the
names of employees who appeared to vote.
(a) Regarding the Union’s conduct on the day of the
election, we agree with the hearing officer’s finding that
there is no evidence that any unit employee’s access to
the building, the Employer’s premises, or the voting area
was inhibited or blocked more than momentarily. Union
supporters and agents outside the Employer’s premises
displayed union signs and insignia, made prounion
statements, and attempted to speak to employees entering
the area. Although there is some evidence that union
supporters may have touched employees in an effort to
engage them in conversation, there is no evidence of any
forceful or violent contact or similar threatening harass-
ing contact. The union supporters respected employees’
requests to be left alone. As we find elsewhere in this
decision, there was no other credible evidence of objec-
tionable conduct. Thus, the Union’s conduct outside the
premises on election day did not reasonably tend to inter-
fere with employees’ access to the polling place. See
Comcast Cablevision of New Haven, 325 NLRB 833,
837 (1998).
(b) Regarding the allegation of note taking or re-
cording of voter’s names, it is the Board’s well-
established policy that keeping a list of names, apart
from the official voting list, is generally prohibited.
However, the Board generally does not find such list
making coercive in the absence of evidence that employ-
ees knew their names were being recorded. A. D. Julliard
& Co., 110 NLRB 2197, 2199 (1954); Locust Industries,
4 We do not foreclose the possibility that photography by nonagents,
in the context of other conduct, could be objectionable under the “third
party” standard. See Westwood Horizons Hotel, 270 NLRB 802
(1984).
340 NLRB No. 123
CHRILL CARE, INC. 1017
218 NLRB 717 fn. 2 (1975); Cerock Wire & Cable
Group, Inc., 273 NLRB 1041 (1984).
Here, no eligible voter testified to having witnessed
anyone recording names or other information. The only
witnesses who testified that they observed union organ-
izers recording anything were not unit employees, in-
cluding the Employer’s security contractor and union
organizers. Moreover, the hearing officer credited testi-
mony that the list keeping by union agents was con-
ducted circumspectly, and a short distance away from the
premises where the election was held. Thus, he found no
basis in the record to infer that any eligible voter wit-
nessed the list keeping. It follows that no eligible voter
could have been coerced by the Union’s conduct. Ac-
cordingly, we agree with the hearing officer that the re-
cording of names or other information was unobjection-
able.
3. We also adopt the hearing officer’s recommendation
to overrule Objection 6. There, the Employer alleged
that the Union threatened, intimidated, and coerced em-
ployees by infiltrating and disrupting the Employer’s
offsite employee meetings during the preelection period,
and by demonstrating outside the Employer’s facility on
election day. The Employer characterizes this conduct as
a challenge to its property rights and asserts that the Un-
ion “objectively left employees with the impression that
management could not stop the force of the Union, thus
employees were likewise powerless to resist.” We find
no merit in these contentions.
The Employer first argues that the Union engaged in
objectionable conduct at the Employer’s offsite meeting
at a local restaurant about 2 weeks before the election. In
this regard, the evidence shows that union organizer
Ramjas briefly disrupted the meeting and initially re-
sisted the Employer’s efforts to eject her, but was ulti-
mately persuaded to leave once the police were called.
Gail Ahern, the Employer’s director of operations,
apologized to the assembled employees for Ramjas’ dis-
ruptive conduct; and Jerry Fernandez, the Employer’s
labor consultant, asked employees, “[I]s that the kind of
person you want representing you?” We agree with the
hearing officer that, rather than give employees the im-
pression that the Employer was powerless against the
force of the Union, this incident would be more likely to
convince employees that the Employer was fully able to
maintain control. Accordingly, we agree with the hear-
ing officer that employees witnessing Ramjas’ conduct
would not reasonably have felt coerced in the exercise of
their free choice in the election. If anything, as the hear-
ing officer found, Ahern’s and Fernandez’ measured re-
sponse to Ramjas’s disruptive conduct more likely made
Ramjas appear to be an embarrassment, if not a “laugh-
ing stock,” and a poor reflection on the Union.5
The Employer also contends that union representatives
engaged in objectionable conduct by refusing to leave the
Employer’s premises on the day of the election. The
hearing officer rejected this argument, finding that the
Union’s actions took place either on public property or
on property owned by the United Way, which leases
space to the Employer. In exceptions, the Employer
claims that, under New Jersey law, it does have the right
to exclude nonemployee union organizers from its leased
premises.
We find no merit in this argument. First, the record
does not clearly establish that the Union’s activity about
which the Employer complains took place on property
under the control of either the building owner or the Em-
ployer. Accordingly, the Employer’s reliance on argu-
ments regarding its asserted exclusory property rights in
the premises is misplaced. Second, the only time the
Employer even alleges that the building owner asked the
union supporters to leave,6 the credited evidence shows
that they did. According to the Employer, they returned
later, but there is no evidence that either the Employer or
the building owner attempted to remove them thereafter.
Indeed, the Employer does not even allege that it ever
asked the union supporters to leave the premises or that it
asked the building owner to remove them. Third, there is
no evidence that the union supporters’ conduct was wit-
nessed by any eligible voters. Thus, the record does not
support the Employer’s contention that the conduct in
question could have given voters the impression that the
Employer was powerless to resist the Union’s intrusions
onto its premises.
The Employer argues that Phillips Chrysler Plymouth,
304 NLRB 16 (1991), compels a finding that the Union’s
conduct was objectionable. We disagree. The facts in
the case are plainly distinguishable from those presented
here. In Phillips Chrysler Plymouth, union agents en-
tered the employer’s premises shortly before the voting
was scheduled to begin, belligerently refused to stop
talking to employees in the shop area, engaged in a

5 The Employer argues that Ramjas’ conduct must be found objec-
tionable absent offsetting misconduct by the Employer. There is no
basis for that argument. The fact that the Employer did not engage in
misconduct does not mean that Ramjas’ conduct was objectionable. Cf.
Avis Rent-A-Car System, 280 NLRB 580, 581 (1986), setting forth a
nine-factor test for assessing whether a party’s conduct warrants setting
aside an election.
We do not condone Ramjas’s disruptive behavior. We simply find,
under all the circumstances, that this incident, however undesirable and
offensive, was insufficient to warrant overturning the election.
6 Contrary to the Union, the evidence regarding this request is not
hearsay.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1018
shouting match with the employer in the presence of em-
ployees, and refused to leave even after the police ar-
rived. The Board found that the union agents’ conduct
interfered with the election by indicating to employees
that the employer was unable to protect its own property
rights in a confrontation with the Union. Here, by con-
trast, neither Ramjas nor the union supporters on election
day ultimately refused to leave the premises occupied by
the Employer: when requested to leave, they left. Some
union supporters returned to the Employer’s premises
later on election day but were apparently not asked to
leave thereafter.7 Thus, employees would not reasonably
conclude that the Employer was unable to protect its le-
gal rights in a confrontation with the Union.8

7 See Edward J. DeBartolo Corp., 313 NLRB 382, 383 (1993).
8 Indeed, as stated above, there is no evidence that any eligible voter
witnessed the union supporters’ actions on election day.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Home Health Care, 1199, AFSCME,
National Union of Hospital & Health Care Employees,
AFL–CIO, and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:
All full-time and regular part-time certified home
health aides employed by the Employer at its Mont-
clair, New Jersey facility, but excluding all other em-
ployees, office clerical employees, managerial employ-
ees, registered nurses and other professional employ-
ees, guards and supervisors, including HR coordinators
and client service coordinators, as defined in the Act.