Community Care Systems, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1987

284 N.L.R.B. 1147 (N.L.R.B. 1987)

COMMUNITY CARE SYSTEMS

1147
Community Care Systems, Inc. and Service Employ-
ees International Union Local 880, Petitioner.
Case 13-RC-16777
21 July 1987
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, AND STEPHENS
The National Labor Relations Board has consid-
ered objections to a second election held 26 April
1986 and the Regional Directors report recom-
mending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 47 for, and 36
against, the Petitioner, with 6 challenged ballots, an
insufficient number to affect the results.
The Board has reviewed the record in light of
the exceptions and briefs, and has adopted the Re-
gional Director's findings and recommendations
with the exception of his findings with respect to
reasons for selecting the date on which the rerun
election was held. We reject the Employer's excep-
tions regarding the election date, however, because
the Employer signed a stipulation specifying that
the election would be held on the date in question.
In the cases on which our dissenting colleague
relies for his contention that the election should be
set aside, the record showed that eligible voters
were "prevented from voting" (Glenn McClendon
Trucking Co., 255 NLRB 1304, 1305 (1981)) or
"had no opportunity to vote" (Yerges Van Liners,
162 NLRB 1259, 1260 (1967)). While the Employer
contends here that the election date was such that
it would be inconvenient or difficult for employees
to vote, it alleges no facts that rise to the level of
conditions preventing employees from voting. (We
also note that election notices were mailed to eligi-
ble voters, so there can be contention that the
voters were not adequately apprised of the time,
date, and place of the election.) To be sure, as our
dissenting colleague notes, the Board should strive
to choose election dates that "will best insure maxi-
mum participation." Versail Mfg., 212 NLRB 592,
593 (1974). Had the Employer declined to stipulate
to the date it now protests, thereby compelling the
Regional Director to issue a decision respecting the
election date, and had the Employer timely ap-
pealed that decision to the Board, there might well
have been a basis for ordering the election held on
one of the mandatory training session days or di-
recting that the election be conducted by mail
ballot. But where the election has gone ahead pur-
suant to the parties' stipulation, however reluctant,
and it does not appear that the election arrange-
284 NLRB No. 116
ments were such that employees were prevented
from voting, we see no basis for permitting the un-
successful party to attack the election on the basis
of a condition to which it stipulated. As the Board
also noted in Venda Mfg., id. at 593: "There must
be some degree of finality to the results of an elec-
tion, and there are strong policy considerations fa-
voring prompt completion of representation pro-
ceedings." Those interests would not be served by
entertaining postelection proceedings on whether
stipulated election conditions were such as to
insure maximum participation, particularly in light
of the fact that elections are vulnerable to attack
whenever it appears that the Board has permitted a
material breach of the election stipulation. See
NLRB v. Granite State Minerals, 674 F.2d 101 (1st
Cir. 1982); Summa Corp. v. NLRB, 625 F.2d 293
(9th Cir. 1980).
The importance of stipulations in the Board's
election procedures were emphasized by former
Chairman Edward Miller during consideration of
the labor law reform bill by the 95th Congress:
Today the overwhelming majority—indeed,
over 75 percent—of election petitions result in
prompt elections by total agreement of law-
abiding employers and cooperative unions.
Voluntarily arrived at agreements hammer out
every last detail of an election, and as a result,
the entire election process is successfully com-
pleted under those agreements in a median
time of less than 60 days. The entire represen-
tation dispute is resolved by this voluntary
process within this time.
Hearings on H. R. 8410, the Labor Law Reform
Act of 1977, Part II, before the Subcommittee on
Labor-Management Relations of the Committee on
Education and Labor of the House of Representa-
tives, 95th Congress, 1st Sess. at 749 (1977).
Former Chairman Miller warned to the chaos and
delay which would be created if parties lost the in-
centive to resolve by agreement the myriad of de-
tails attending an election. We think that the dis-
sent's casual treatment of stipulations poses such a
risk, for parties are far less likely to enter into
agreements if they are worth little more than the
paper they are printed on.
Having concluded that the Regional Director
properly relied on the stipulation of the parties to
determine that the scheduling of the election pro-
vided voters with notice and an opportunity to
vote, we turn to the Employer's assertion that the
low number of voters warrants setting aside the
election. In our recent decision in Lemco Construc-
tion, 283 NLRB 459 (1987), which overruled Kit
Mfg. Co., 198 NLRB 1 (1971), and Gold & Baker,
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
54 NLRB 869 (1944), the Board "abandon[ed] any
analysis dependent on a numerical test to determine
the validity of a representation election." Id.
Accord: Northern Star Realty Co., 283 NLRB 1159
(1987). Thus, the low voter participation in the in-
stant case does not invalidate the election results.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Service Employees Interna-
tional Union Local 880 and that it is the exclusive
collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regular part-time chorehouse-
keepers and homemakers employed by the em-
ployer who receive their work assignments
through the Employer's office currently locat-
ed at 1010 West Lake Street, Suite 505, Oak
Park, Illinois, 60301; but excluding all profes-
sional employees, office clerical employees,
casual employees, guards, and supervisors as
defined in the Act.
CHAIRMAN DOTSON, dissenting.
Contrary to my colleagues, I do not adopt the
Regional Director's recommendation that the Em-
ployer's objections to the election be overruled in
their entirety and that a Certification of Represent-
ative be issued. More specifically, I find merit in
the Employer's Objection 2 1 and, as discussed
below, I find that under the circumstances the re-
fusal of the Regional Director to schedule the elec-
tion on the same day as a regularly scheduled man-
datory employee training session interfered with
the holding of a fair election.
The Employer provides services for senior citi-
zens in their homes. The Petitioner seeks to repre-
sent a unit of all full-time and regular part-time
chorehousekeepers and homemakers. These em-
ployees do not report for work at a single central
location, but instead receive their specific work as-
signments from the Employer's office. They then
go directly to the residences of the Employer's
senior citizen clients, where they perform their in-
home housekeeping duties throughout the work-
day. Approximately once every 3 months the Em-
ployer conducts a training session for its employees
at a central location. This is a regularly scheduled
paid workday for all employees and all employees
are required to attend. These regularly scheduled
I agree with my colleagues to adopt the Regional Director's recom-
mendation that the Employer's other objections be overruled.
training sessions are the only occasions when the
unit employees are together for work purposes.
The initial election in this case was scheduled for
and conducted on the same day and at the same
place as one of the regularly scheduled mandatory
training sessions: 21 December 1985 at the Carleton
Hotel in Oak Park, Illinois. There were approxi-
mately 291 eligible voters: 82 voted for the Peti-
tioner, and 43 voted against. There were 37 chal-
lenged ballots.
The Employer filed numerous objections to the
election, alleging, inter alia, that the Board agent
conducting the election had erroneously begun the
balloting process in the conference room that had
been designated for the training session, resulting in
disruption and delay in both the training session
and the balloting while the latter was being shifted
to the correct room.
The Regional Director issued a Report on Ob-
jections and Notice of Hearing, scheduling an evi-
dentiary hearing on the Employer's objections.
However, before the date set for the hearing, the
Petitioner notified the Regional Director that:
In an effort to afford all bargaining unit em-
ployees an opportunity to express their desires
as to Union representation in an atmosphere
unquestionably free from any confusion, and'
based upon the filing of objections by the Em-
ployer herein and facts elicited concerning
events occurring at the initial election, the
Union agrees as follows.
It is undisputed that the room where the
election was being conducted was changed
during the course of the election and during
voting time. This conduct may have caused
confusion to eligible voters concerning the lo-
cation of the polling. Therefore, the Union
does not object to the Regional Director or-
dering the holding of a new election based
upon the above recited conduct.
The Regional Director thereafter issued a Sup-
plemental Report on Objections and Direction of
Rerun Election, rescinding his earlier notice of
hearing on objections to the initial election and in-
stead_ directing a second election, on the basis of
the Petitioner's stated willingness to participate in a
second election. On 5 March 1986 the Board issued
a Decision, Order, and Direction of Second Elec-
tion, affirming the Regional Director's direction of
a rerun election, , to be conducted "whenever the
Regional Director deems appropriate."
The Employer requested the Regional Director
to schedule the rerun election for the same date
and ' place as a regularly scheduled mandatory
training session, which, as seen above, would be
COMMUNITY CARE SYSTEMS

1149
the only time when all unit employees would be as-
sembled at one location. However, for reasons to
be discussed more fully below, the Regional Direc-
tor refused the Employer's request to schedule the
rerun election to coincide with a training session.
Ultimately, the Employer acquiesced in the Re-
gional Director's scheduling of the election of 26
April 1986. Out of the approximately 417 employ-
ees eligible to vote, only (at most) 89 actually came
to the hotel to cast their ballot: 47 voted for the
Petitioner, 36 against, with 6 challenged ballots.
The Employer filed objections to this election,
alleging, inter alia, in Objection 2 that the Regional
Director's refusal to schedule the election for the
same date and place as a regularly scheduled man-
datory training session contravened "the Board's
duty to schedule the election at a time and date
which would afford the greatest number of eligible
voters the opportunity to vote."
The Regional Director recommended that this
objection be overruled, asserting that the rerun
election was specifically and properly scheduled
not to coincide with a mandatory training session
for the following reasons:
(1) To avoid a repeat of the confusion over
voting and training room assignments that was
experienced during the first election, resulting
from the Board agent's error in setting up the
polling area in the training room;
(2) To avoid the potential for a possible viola-
tion of the Board's Peerless Plywood rule pro-
hibiting captive audience speeches to massed
groups of employees within 24 hours of an
election. See Peerless Plywood Co., 107 NLRB
427 (1953);
(3) To avoid possibly creating the impression
in the minds of the employees that they were
actually being paid to vote in the election (i.e.,
since employees are paid for their attendance
at the mandatory training sessions).
I find the reasons offered by the Regional Direc-
tor for refusing to schedule the rerun election for
the same date and place as a mandatory training
session to be baseless and specious. I further find
that his refusal needlessly and unreasonably under-
mined, under the unusual employment circum-
stances of this case, the only realistic hope for max-
imum employee participation in the election, with
the result—almost predictable under the circum-
stances—that nearly 80 percent of the unit employ-
ees did not vote in the election.
First, any supposed potential for a Peerless Ply-
wood violation or for a misunderstanding among
the employees that they were being paid to vote in
the election rather than attend the training session
would have been no more prevalent in the rerun
election than they theoretically were in the initial
election. And yet these considerations posed no
similar impediment to the Regional Director's
scheduling of the first election to coincide with a
training session. Nor is there even a bare assertion,
much less a shred of evidence, that there was a vio-
lation of the Peerless Plywood rule, or a belief on
the part of any employee that he was being paid to
vote, in the first election. Nor is there any other
basis for the Regional Director's speculative appre-
hension that this Employer would violate the long-
established and well-understood rule against mass
audience speeches within 24 hours of the election,
car that these employees would somehow dupe
themselves into thinking that they were receiving a
full day's wage not for attending an all-day training
session, but for spending a few moments voting in
the election. Thus, the Regional Director's reliance
on these two reasons for refusing to schedule the
rerun election for the same date and place as a
mandatory training session is totally without merit.
Even more illogical and unreasonable is the Re-
gional Director's asserted fear that the Board
agent's mistake in room assignments, and the result-
ant voter confusion which occurred in the first
election, would be repeated in the rerun election if
it were scheduled to coincide with a training ses-
sion. I draw precisely the opposite inference from
that drawn by the Regional Director. I infer that
once having made the mistake of setting the polling
in the room designated for the training session, the
Regional Office would be acutely sensitive to such
a circumstance and would take the reasonable and
simple precautions against its repetition, thereby
virtually eliminating any remote possibility that the
same mistake would be repeated in the rerun elec-
tion. There is simply no basis for the Regional Di-
rector's asserted apprehension that the same mis-
take would be repeated. To the contrary, there was
every reason to be confident that it would not in
light of the special emphasis that must necessarily
have been placed on insuring that it did not. I do
not recall ever having seen an election scheduled
on the partial possibility that the Regional Office
would make an elementary mistake concerning the
location of the polling area.
My colleagues join me (albeit silently) in com-
pletely rejecting the Regional Director's asserted
reasons for refusing to grant the Employer's re-
quest that the rerun election be scheduled to coin-
cide with a mandatory training session. Yet, in re-
fusing nevertheless to set aside the instant election,
my colleagues grasp at the fact that the Employer
ultimately capitulated to the Regional Director's
unreasonable refusal to schedule the rerun election
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to coincide with a mandatory training session. I
find it illogical and unfair that my colleagues on
one hand reject the Regional Director's asserted
reasons for purposely scheduling the instant elec-
tion so as not to coincide with a mandatory train-
ing session and on the other hand accept the
flawed result of this election. My colleagues im-
plicitly agree that the election was scheduled for a
nontraining day without good reasons. They never-
theless accept the result on the simplistic ground
that the Employer acquiesced in the face of the
Regional Director's unreasonable refusal to sched-
ule the election to coincide with a mandatory train-
ing session—the only day under the instant circum-
stances when maximum voter turnout could realis-
tically be anticipated.
Notwithstanding that the parties ultimately stipu-
lated to the scheduling of the instant election, it is
well settled that it is the Board's responsibility, not
that of the parties, to establish the proper proce-
dure for the conduct of elections and that an im-
portant part of the procedures established by the
Board is that all eligible employees should be given
an opportunity to vote. 2 The Board has stated the
general proposition that:
Elections are scheduled at times and places, in-
cluding whatever special provisions appear to be
appropriate, that will best insure maximum par-
ticipation in light of what is known at the time
the procedures are set up. [Emphasis added.]3
Here, of course, it was well known to all involved,
including the Regional Director, that special cir-
cumstances existed in the daily employment pattern
of the instant unit employees—i.e., only coming to-
gether as a group at regularly scheduled mandatory
training sessions. In light of those known special
circumstances, special provisions in the scheduling
of the election were clearly warranted so as to best
insure maximum employee participation in the bal-
loting. But for no good reason the Regional Direc-
2 See generally, e.g., Glenn McClendon Trucking Co., 255 NLRB 1304
(1981); Yerges Van Liners, 162 NLRB 1259 (1967).
3 Versa!! Mfg., 212 NLRB 592, 593 (1974). Arguably, 55.7 percent of
the potential electorate participated in the first election which was run on
the date of the training program. Only 21.3 percent of the potential elec-
torate participated in the second election which, for the specious reasons
advanced by the Regional Office, was held on an off day.
tor knowingly and unreasonably refused to imple-
ment the special scheduling provisions so clearly
dictated by the special circumstances of this case.
Contrary to my colleagues, I do not fmd that the
Employer's reluctant acquiescence in the Regional
Director's recalcitrance rectifies the fundamental
wrong done to the unit employees here. Thus,
what my colleagues fail to acknowledge in all this
is that the real loser in this battle of wills between
the Regional Director and the Employer is not the
Employer who gave in, but the employees, who
lost out by effectively being deprived of what was
by far their best hope for maximum voter participa-
tion in the instant election.4
In light of the above considerations involving a
substantial number of unit employees being unrea-
sonably denied their single best opportunity to vote
by the failure of the Regional Director to make
reasonable accommodations in the scheduling of
the election, I would set aside the election and
direct that another election be conducted.
4 My colleagues' discourse on the importance of stipulations and finali-
ty of results in election proceedings misses the most important aspect of
this case. By any reasonable standard applied to the facts of this case, this
election was simply misscheduled. This nusscheduling was the direct
result of the Regional Director's unreasonable apprehension of: (1) re-
peated Board agent confusion; (2) Employer misconduct, and (3) employ-
ee misunderstanding, all as outlined above The result of the misschedul-
ing of the election was a substantial undermining of the goal of maximum
voter participation. The fact that the Employer ultimately acquiesced in
the Regional Director's misscheduling of this election does nothing to
change or mitigate that bad result. Nevertheless, in response to my posi-
tion that this election should be set aside unller the circumstances, my
colleagues accuse me of treating election stipulations casually. I do not,
but neither do I treat them as so sacrosanct as to be beyond the reach of
the Board's authority and responsibility to conduct elections in the ulti-
mate best interests of the electorate. As a general matter, the Board has
broad discretion, in furtherance of its authority to protect the self-deter-
mination rights of employees, to modify or set aside consent agreements
in representation cases. Cf. Air Express International, 245 NLRB 478, 502
(1979), enfd. in relevant part 659 F.2d 610 (5th Or. 1981) (stipulation of
parties rejected by Board where stipulation based on false statement of a
party). Indeed, it is Board policy not to accept the stipulations of parties
in election cases where such stipulations are contrary either to the statu-
tory provisions of the Act, or established Board policy. See, e.g., Cabrillo
Lanes, 196 NLRB 921 (1973) (parties' oral agreement concerning unit
composition not accepted by Board because contrary to Board policy).
See generally SCM Corp., 270 NLRB 885 (1984) (general statement of
Board policy regarding acceptance or rejection of stipulations as to unit
composition). Thus, the parties' interest in reliability of stipulations and
finality of results are not absolute. Setting aside the instant election for
the reasons I have suggested, under the unusual circumstances of this
case, would not undermine the validity of those interests, and would not,
contrary to my colleagues' prediction, lead parties to assume that their
stipulations are worth less.