Corydon Nursing Home

National Labor Relations Board - Board Decisions

Jan 29, 1973

201 N.L.R.B. 462 (N.L.R.B. 1973)

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern Health Corp. d/b/a Corydon Nursing Home
and District Union Local No. 227, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO, Petitioner . Case 25-RC-4968
January 29, 1973
DECISION AND CERTIFICATION OF
REPRESENTATIVE
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election approved on April 17, 1972, an
election by secret ballot was conducted on May 19,
1972, under the direction and supervision of the
Regional Director for Region 25 among the employ-
ees in the unit described below. Upon the conclusion
of the election, a tally of ballots was furnished the
parties which showed that of approximately 22
eligible voters, 21 cast valid ballots, of which 12 were
cast for the Petitioner, 9 were cast against the
Petitioner, and 2 were challenged. The challenged
ballots were insufficient in number to affect the
results of the election. Thereafter, the Employer filed
timely objections to conduct affecting the results of
the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on August 28, 1972,
issued and duly served on the parties his report and
recommendations on objections, excerpted in perti-
nent part and attached hereto as Appendix A, in
which he recommended that the objections be
overruled in their entirety. Thereafter, the Employer
filed exceptions to that portion of the Regional
Director's Report on Objections overruling the
Employer's Objection 1.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and 2(6) and
(7) of the Act.
I The exceptions raise no material or substantial issues of fact or law
which would warrant reversal of the Regional Director 's findings and
recommendations
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time employees of
the Employer at its Corydon, Indiana nursing
home, but excluding all office clerical employees,
all professional employees, all guards and all
supervisors as defined in the Act.
5. The Board has considered the Regional Direc-
tor's Report, the exceptions,' and the entire record in
this case, and hereby adopts the Regional Director's
recommendation that the objections be overruled in
their entirety.2
Accordingly, as the tally shows that the Petitioner
has obtained a majority of the valid ballots cast, we
shall certify it as the exclusive bargaining representa-
tive of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for District Union Local No.
227, Amalgamated Meat Cutters and Butcher Work-
men of North America , AFL-CIO, and that,
pursuant to Section 9(a) of the National Labor
Relations Act, as amended , the said labor organiza-
tion is the exclusive representative of all the
employees in the unit found appropriate herein for
the purposes of collective bargaining in respect to
rates of pay , wages , hours of employment , or other
conditions of employment.
CHAIRMAN MILLER , concurring separately:
I agree with the majority 's adoption of the
Regional Director 's recommendation to overrule the
allegation in Objection I that the Petitioner misrepre-
sented the facts in comparing the wages and benefits
paid to employees of two other companies in the area
with those the Employer paid.
I also concur in the result reached concerning the
alleged last minute representation made by the
Union with respect to the provisions of its own
constitution relating to fines , assuming for this
purpose , as did the Regional Director, that the
Union's statement did misrepresent that document's
terms in this regard . However , I rely on broader
grounds than those referred to by the Regional
Director.
In my concurring opinion in Allis-Chalmers Manu-
facturing Company, 194 NLRB No. 150, I found that
a misrepresentation as to one isolated factual issue
(as here , a union 's misrepresentation of its fining
policy) is not likely to have had a real impact on the
7 In the absence of exceptions, we adopt , pro forma, the Regional
Director's recommendation to overrule Objections 2 and 3
201 NLRB No. 63
CORYDON NURSING HOME
outcome of the election where a wide variety of
issues had been freely discussed in the election
campaign, the majority vote in the election was
substantial, and the employees in deciding how to
vote did so upon an analysis of a wide variety of
facts, their emotional reactions, and their experiences
in a very real world.
The Employer here argues that this case is
distinguishable from Allis-Chalmers Manufacturing
Company, in that the results of the election here were
closer and that the Union here injected the fine issue
as a significant one in the latter stages of the
campaign.
As I have indicated subsequent to the Allis-Chal-
mers decision, in my recent separate concurring
opinion in Bill's Institutional Commissary Corp., 200
NLRB No. 154 (Case 15-CA-329), I am, becoming
increasingly disenchanted by the attempts of this
Board and of the courts to try to achieve campaign
purity by a willingness to set aside elections on the
basis of one or two alleged misstatements of facts
made by one party or another during such cam-
paigns. Too often such attempts succeed only in
provoking lengthy litigation as to what was said,
whether or not it was true, whether or not it is
"material" if untrue, whether the subject matter was
one peculiarly within the knowledge of the party
making the statement, whether or not employees may
have had independent knowledge bearing on the
issue, and so on ad infinitum, if not ad nauseam.
Furthermore, my own practical experience in
working in this field for over 2 decades before being
appointed to this Board had tended to persuade me
that election campaign materials have less impact on
voting results than is commonly realized and that
voters in Board elections both more frequently
ignore such propaganda and are more capable of
evaluating campaign material, both true and false,
than this Board and the courts have realized. My
conclusions seem to be supported by the first and
preliminary results of the only empirical research
study I know of which has been conducted in this
area.3
For these reasons, I would exercise great restraint
in these matters and would set aside elections only in
those relatively rare instances in which a readily
ascertainable pattern of the most egregious kind of
clearly identifiable misrepresentations permeated the
campaign so significantly that one would be com-
pelled to conclude that voters of ordinary intelligence
would have been incapable of forming a rational
judgment on the basic issue of whether they wish to
be represented by a labor organization (and, when
appropriate, by which of competing organizations
they would prefer to be represented).
I do not regard the misrepresentations here, if such
463
they were, to have been of that character. For these
reasons, I would overrule the objections here.
3 The National Labor Relations Board Voting Study A Preliminary
Report ; The Journal of Legal Studies , published by the University of
Chicago Law School , Volume 1, June 1972 , p. 233 , et seq.
APPENDIX A
THE OBJECTIONS
The [Employer's] Objections read in relevant part
as follows:
1. Material Misrepresentations of Facts by Petition-
er.
(a) On May 17, 1972, Petitioner sent a letter to the
employees, obstensibly in response to a letter from
the Employer dated May 8, 1972, in which the
Petitioner misrepresented to the employees that
Petitioner is prohibited from imposing fines upon its
members under the terms of the union Constitution.
A copy of such letter from Petitioner dated May 17,
1972, is attached to these objections as Exhibit A,
and a copy of the Employer's letter of May 8, 1972, is
attached as Exhibit B. In fact, under Article I,
Section 4 of the Constitution of the international
union, fines upon officers, organizers, representa-
tives, and members of local unions are expressly
authorized. In addition, Article V, Section 1 of the
Constitution and By-Laws for the Government of
Local Unions and District Unions Affiliated with the
Amalgamated Meatcutters and Butcher Workmen of
North America, AFL-CIO, authorizes executive
boards of local unions to "fix an exact and
appropriate penalty" in event of the preferring of
charges against any member of the union. No
restriction is found in either of such constitutions or
by-laws which prohibits the imposition of fines upon
members; and indeed, Article XII, Section 1 of the
international constitution requires that no provision
of any constitution of any local or district union may
conflict with the provisions of the international
constitution or local constitution.
(b) Petitioner accompanied such letter of May 17,
1972, with a comparison sheet purporting to show
wages and benefits paid to employees of two other
companies located in Corydon where Petitioner is
collective bargaining agent. Such comparison sheet
contained various misrepresentations, including the
starting wage rate at each of such two locations, and
the paid holiday, paid vacations, and maternity leave
benefits at the A & P Grocery Co. Employer is
advised that Petitioner and A & P Grocery Co. have
negotiated a new collective bargaining agreement
which may or may not embody certain of the
additional benefits specified in such comparison
sheet, but such agreement has not been approved by
applicable governmental authorities; and Petitioner
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has accordingly misrepresented to the Employer's
employees that such benefits are presently in effect.
(c) Such misrepresentations of matters within
Petitioner's special knowledge were made at a time
when Employer did not have a reasonable opportuni-
ty to make an effective reply. Under applicable
Board decisions, this constitutes grounds for setting
the election aside. E.g., Gouzoule d/b/a Calidyne Co.,
117 NLRB 1026 (1957).
Objection I
In substance, it is the Employer's contention that
Petitioner's letter to employees and attachment
thereto, issued on or about May 17, 1972 and
attached hereto as Exhibit A,3 are objectionable
because the letter falsely states that Petitioner can
not fine its members and because the attachment is
so inaccurate a comparison of wages and other
benefits as to constitute material misrepresentation
sufficient to warrant setting aside the election. In
regard to fines, the Employer relies on Article II,
Section 4 of the Petitioner's international constitu-
tion and Article V, Section 1 of the Constitution and
By-Laws for the Government of Local Unions and
District Unions (including Petitioner).4 Article II,
Section 4 of the International constitution sets forth
the powers of the international president to take
action against local unions, officers or members who
engage in activities specifically enumerated therein
as (a) through (g). The section of the local and
district union constitution relied on describes the
procedure for charges and appeals, and is restated at
Article VII, Section 1, of the Petitioner's constitu-
tion.5 None of the three documents contain any
express provisions for fines or discipline for conduct
of members or locals except for items (a) through (g)
referred to above and Section 3 of Article VII of the
local's constitution.
Petitioner asserts that Exhibit A is in reply to the
Employer's May 8 letter, (Exhibit F) and is a correct
statement that members are not fined for working
J The remainder of Petitioner 's campaign literature is attached as
Exhibits B and C . The Employer's literature is attached hereto as Exhibits D
through H [Exhibits omitted from excerpt , except for Exhibit F ]
4 Said Sections are attached hereto as Exhibits I and J , respectively
[Exhibits omitted from excerpt ]
S Section attached hereto as Exhibit K (Exhibit omitted from excerpt ]
6 Section attached hereto as Exhibit L. [Exhibit omitted from excerpt.]
I Thus in its May 8 letter the Employer asserted.
Even more shocking is the very great powers which unions have to fine
and discipline their members and make it stick . (underscoring in text)
One recent example is a situation in which 13 employees 6 of whom were
women earning between $1 66 and $1 88 an hour went back to work during
a strike in order to support themselves and their children Their union fined
these people about $50000 apiece and made it stick In still another
situation, one employee was fined $1800 00 and another was fined
S2000 00 by their union because they chose to violate a union rule by
during a strike or crossing a picket line, that charges
can only be brought against members for the reasons
specifically enumerated in the international constitu-
tion , and that Article XXI, Section I of the
international constitution6 (not "XII" which relates
to death benefits) precludes any conflicting action by
local unions.
The precise constitutional powers of the Union in
levying fines need not be determined . Assuming
arguendo that Petitioner is authorized by its constitu-
tion to fine members for breaking strike , in evaluat-
ing claims of misrepresentation it must be remem-
bered that not all misrepresentations warrant setting
aside an election , and that to justify a new election
the misrepresentation must be of a type that could
reasonably be expected to have affected the results of
the election. Chemitrol Chemical Co., 190 NLRB No.
56; Jeffrey Mfg. Co., 180 NLRB No. 108, Cross
Baking Co., 186 NLRB No . 28; Follet Corp. 160
NLRB 506; Wiley Mfg. Co., 174 NLRB No. 30; and
the Board has long recognized that distortions , inaccu-
racies and half-truths are insufficient to constitute
objectionable conduct , Hollywood Ceramics Co., 140
NLRB 221. As the Board pointed out in the latter
case "even where a misrepresentation is shown to be
substantial , the Board may still refuse to set aside the
election if it finds upon consideration of all the
circumstances that the statement would not be likely
to have a real impact upon the election .["] In context
as the underscored statements of the Employer and
union documents in controversy 7 establish the
conflict between the Union and the Employer dealt
with the power of the Union to fine employees who
broke strike.
It is contrary to common experience to imply that
employees designating a union to represent them and
achieve a contract through strike or other actions will
be majorly concerned by the fact that the union has
the power to penalize their fellow employees who
break strike and defeat their efforts to obtain a
contract . Thus not only was the union 's ability to
fine its members for breaking strike a minor issue in
the specific campaign actually conducted by the
crossing a picket line
and the Union 's reply is likewise in context directed to the question of fines
for breaking strike.
Mr Ragland stated in his letter to you of May 8 [1 ] that the union
fined people for crossing a picket line What union was he talking about
[2] It was not this union because under our union constitution we
cannot fine anyone (3 ] if he tells) ou that it was this union (who fined the
employees mentioned in the employees May 8 letter] then he is lying again
Taken in isolation statement (2) implies the Union was without power to
fine members . However in the context of the employer 's letter of May 8
which fairly implied that if they voted for the Union the employees could be
fined for crossing the picket line and statements ( 1) and (3 ) which dealt with
the question of whether the Union had or could fine employees for crossing
the picket line, the thrust of the Union's remarks was that any suggestions
that employees had, could or would be fined for breaking strike was false.
CORYDON NURSING HOME 465
parties (having been mentioned only in the Employ-
er's May 8 letter and the Union's reply), but also it is
contrary to common experience to consider it a
determinative issue in deciding an employee's vote.
Additionally even if the issue were material, the
factual context in which it occurred is indistinguisha-
ble from the situation in which the Board has held a
generalized misrepresentation concerning a union's
ability to fine members not to constitute proper
cause to set aside an election . Chemitrol Co., 190
NLRB No. 56.
For the reasons set forth above it is the opinion of
the undersigned , the letter complained of is not a
sufficient ground to justify a new election, particular-
ly since the possibility of fines for violation of union
rules was not , in any real sense, a significant
campaign issue in the pre -election campaign. In any
event, propaganda of the nature complained of is
well within the ability of the electorate to evaluate,
especially when it has been repeatedly forewarned by
the Employer to discount Petitioner's pre-election
statements and evaluate them carefully . . . and the
fact unions do have some disciplinary procedures for
infractions of membership rules is so widely known
as to be within the realm of public knowledge.
With reference to the "Comparison Sheet" atta-
ched to Exhibit A, the current collective bargaining
agreements between Petitioner and ARPAC Compa-
ny, Inc., and A & P Grocery Co.8 reflect the
following information in relation to the alleged
misrepresentations.
1. Starting Wage Rate: A & P-$2.10 effective
April 30, 1972;ARPAC-$2.00 increasing to $2.17
after 45 days probationary period
2. Paid Holidays: A & P-7 plus 1 days pay in
lieu of a personal holiday;ARPAC-7
3. Paid Vacations: A & P-1 year employment
= I week vacation; A & P-3 years employment
= 2 weeks vacation;A & P-8 years employment
= 3 weeks vacation; (effective Jan. 1, 1972) 15
years employment - 4 weeks vacation; (effective
Jan. 1, 1973) 20 years employment = 5 weeks
a The ARPAC contract is effective November 1, 1971, through October
31, 1974. The A & P contract is effective October 31, 1971, through October
29, 1973.
9 It should be noted that the A & P contract on which the comparison
chart is based was not fully approved by governmental wage stabilization
authorities which limited wage increases to 7% and fringe benefits to 3.9%
and that the parties are currently renegotiating the contract to conform to
these guide lines. The ARPAC contract was however fully implemented. In
the absence of any express claim that the quoted benefits were implemented
rather than contractual rates and in view of the fact that the ARPAC rates
are substantially accurate and in the absence of evidence that the A & P
contract ultimately negotiated in accordance with the prescribed guidelines
will substantially differ from the factual representations made in Exhibit A,
the undersigned cannot conclude the comparison sheet represents an
objectionable misrepresentation within the Hollywood Ceramics rule This is
vacation ; ARPAC-(as shown on "Comparison
Sheet")
4. Maternity Leave: A & P-"Section 2. Materni-
ty Female employees with one (1) year or more of
continuous service shall upon written request be
granted a pregnancy leave of absence without loss
of seniority for job security. A statement from the
employee's attending physician must accompany
the request outlining the date the leave should
become effective.
Prior to returning to work a statement from the
employee's attending physician will be required
listing the date the employee may safely return to
work. Such notice must be given to the Store
Manager fifteen (15) days prior to her returning
to work.
In returning to work she shall be returned to the
store from which she left, provided her length of
service is greater than employees in the same job
classification that work in the store."
ARPAC-(as shown on "Comparison Sheet")
It can thus readily be seen that the "Comparison
Sheet" is a substantially accurate reflection of the
contents of the collective bargaining agreements in
question and nothing in Exhibit A purports to
constitute any more. Thus, beginning wage rate,
holidays and vacations are substantially correctly
reported and the maternity leave section in the A & P
agreement has no limitation on the length of such
leave, although Petitioner advises that store policy
allows only 9 months maternity leave.
Accordingly, I find that the Comparison Sheet does
not contain material misrepresentations or warrant
setting aside the election. Whether or not the A & P
agreement has been "approved by applicable govern-
ment authorities" is immaterial since the "Compari-
son Sheet" is what it purports to be, a compilation of
negotiated wages and benefits secured by the
Petitioner.9
For reasons set forth above it is recommended
Objection I be overruled.
particularly so in view of the fact that one of the two contracts referred to
was substantially accurate and not reviewable by governmental authority.
To the extent the A & P contract provided for more there was no
implication that the voters could reasonably expect more than that which
prevailed under the ARPAC contract which the Union found acceptable
Additionally , since the antecedent contract provided ( 1) a rate range of
$2.02 to $4.38 (except for student employees who received $1.75). (2) the
same vacation benefits for employees with less than 15 years service and (3)
seven holidays , and the Employer (A) does not employ employees with 15
years service or a student employee classification , (B) the student employee
classification was eliminated from the new A & P contract and (C) a seven
per cent wage increase was in fact approved , the comparison sheet is a
substantially accurate representation of the contract ultimately to be
implemented at A & P.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Exhibit A
May 17, 1972
Dear Employee of Corydon Nursing Home:
I would like to take this opportunity to point out
some of the misleading statements that Mr. Ragland
has made to you in his three letters dated May 2, 8,
and 11.
In Mr. Ragland's letter dated May 2, he stated how
much Union dues are a year-why didn't he tell you
how much they are a week? Well, I will tell
you-Union dues would be $1.25 per week for full-
time employees and part-time employees would only
pay $1.04 per week. As you can see by the enclosed
certificate, you will pay no dues until we have a
signed contract with the Nursing Home. In addition,
you will not pay any initiation fee whatsoever. This
Agreement is given to you in writing with our seal
and signature.
Mr. Ragland stated in his letter to you of May 8
that the Union fined people for crossing a picket line.
What Union was he talking about?? It was not this
Union because under our Union Constitution we
cannot fine anyone. If he tells you that it was this
Union, then he is lying again. We are going to bring
this mistruth and other lies that have been told to the
attention of the National Labor Relations Board (U.
S. Government).
In the letter issued by Mr. Ragland dated May 11,
we find even more misstatement of facts. He said a
bulletin was issued on March 6, 1972, in which they
promised you a wage increase in July. As you know,
the bulletin was not put on the board until some time
in April-over a month later and after the Union
already had a majority of the employees signed up.
Ask yourself, "Why was this bulletin so late in going
up?" Also, in this letter of May 11, Mr. Ragland
stated that the Union cannot give you anything. I am
enclosing a comparison sheet of two places of
business whose employees we represent in Corydon,
Indiana. Compare the information listed with your
present wages and benefits. Wouldn't you like to be
making these wages and have these benefits at only a
cost to you of $1.25 per week? IT DIDN'T TAKE A
STRIKE TO GET THESE WAGES AND BENE-
FITS AT EITHER OF THESE TWO COMPANIES
LISTED ON THE COMPARISON SHEET, EI-
THER! So, don't be mislead by Mr. Ragland; he has
forgotten to tell you a great many things. Such as, if
you vote this Union in and after one year, if we have
not done a good job for you, you can vote the Union
back out-this is the LAW!
Give us a chance to prove to you what we can
do-I know you will like us!
Remember-a Union is like insurance; if some-
thing happens to you, you wish you had it! So, be
protected by a strong Union. VOTE YES on MAY
19-for yourself, your family and the future.
Sincerely,
Organizing Committee
DISTRICT UNION LOCAL 227
Exhibit F
May 8, 1972
The Butchers' union may tell you that you need it
here to "protect" you because you are being
mistreated by the management of this nursing home.
First of all, we don't believe this is true . We have
always attempted to be fair with our employees and
believe that we have been fair. We have no doubt
made our share of mistakes, but we have always
respected you as employees and tried to treat
everyone fair and impartially.
Now, however, I want to give you some facts as to
how some unions have treated their members and let
you form your own opinion as to how "fair" you
believe they have been.
If this union follows the same path as almost every
other union follows, the very first thing they will seek
from us if they win the election will be a promise to
fire you unless you join the union and pay money to
them. Ask yourself what kind of security and
freedom you really have under these circumstances?
Even more shocking is the very great power which
unions have to fine and discipline their members and
make it stick.
One recent example is a situation in which 13
employees, 6 of whom were women earning between
$1.66 and $ 1.88 an hour, went back to work during a
strike in order to support themselves and their
children. Their union fined these people about
$500.00 apiece and made it stick. In still another
situation, one employee was fined $1,800.00 and
another employee was fined $2,000.00 by their union
because they chose to violate a union rule by crossing
a picket line.
In my opinion, those employees needed to be
protected a lot more from their union than they did
from their employer.
I ask you not to give up your freedom and the right
to speak and think for yourself. Vote "NO" at the
union election.
Sincerely,
David Ragland
President
CORYDON NURSING HOME
C O M P A R I S O N S H E E T
A & P GROCERY & ARPAC POULTRY PLANT
AS COMPARED WITH
CORYDON NATIONAL NURSING HOME
467
A & P GROCERY CO.
Cordon Ind.
ARPAC, INC. CORYDON NURSING
Cordon Ind. HOME
Wages Per Hour $ 2.10 - $3.67 $2.17 - $2.99 1.60 - $1.75
Holidays 8 paid 7 -paid NONE
Vacations lyr. 1 wk.
3 yrs. = 2 wks.
8 yrs. = 3 wks.
15 yrs. = 4 wks.
20 yrs. = 5 wks.
lyr. =lwk.
5 yrs. = 2 wks.
12 yrs. = 3 wks.
18 yrs. = 4 wks.
1 yr. = 1 wk.
And That's All!
Jury Duty Pay Yes I Yes No
Funeral Leave 3 Days 2 Days None
Maternity-leave [ Up to 9-Months Up to 6 Months ? ? ? ? ? ?
Seniorit y Yes I Yes None
Overtime Time & one-half
over 40 - Double
time Sundays.
Time & one-half
over 40 - Double
time Sundays.
Time & one-half
over 48 hours.
Breaks I Two 15 min., pd. Two 10 min., pd. ? ? ? ? ?
Minimum Call In
Pay Yes Yes None
Life Insurance $6.500 $2,000 None
Medical & Health
Insurance
All paid by
Company
One-half paid
by Company
NO INSURANCE
WHATSOEVER.
Sick Pay Yes Yes None
Pension Plan Yes Yes None
njurv on Job Pay Yes Yes Yes
Uniforms Furnished Yes Yes No
ARBITRATION Yes Yes No!
JOB PROTECTION Yes Yes No! ;
Don't you think that it is worth a $1.25 per week to receive the Union wages
and benefits that the Union Companies of Corydon, Indiana pay their employees?
REMEMBER -- In order to get the above Union wages and benefits the A & P and
ARPAC EMPLOYEES DID NOT HAVE TO STRIKE.
ON MAY 19, 1972 "VOTE YES" FOR YOURSELF, YOUR FAMILY & YOUR FUTURE!