Crestwood Convalescent Hospital

National Labor Relations Board - Board Decisions

Mar 31, 1995

316 N.L.R.B. 1057 (N.L.R.B. 1995)

1057
316 NLRB No. 165
CRESTWOOD CONVALESCENT HOSPITAL
1 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.
The hearing officer stated in his discussion of the Employer’s Ob-
jection 1 that employee Sabida Prasad testified that prounion em-
ployees called out to her, ‘‘remember me,’’ as she walked in front
of the Employer’s facility during the morning voting session. As the
Employer notes in its brief, the record shows that Prasad actually
stated that the employees called out, ‘‘remember us.’’ We do not
find that correction of this minor error is sufficient to affect the hear-
ing officer’s ultimate disposition of the Employer’s Objection 1.
2 In adopting the hearing officer’s finding that the Petitioner did
not make objectionable appeals to racial prejudice as alleged in the
Employer’s Objection 32, we find that the hearing officer correctly
applied the standard of Sewell Mfg. Co., 138 NLRB 66 (1962), in
overruling this objection. The portions of the Petitioner’s campaign
literature on which the Employer relies in no way amounted to an
appeal to racial or ethnic prejudice, but rather urged the solidarity
of all employees in support of the Petitioner’s campaign and against
any actions by the Employer that might incite racial and ethnic divi-
sions. See State Bank of India v. NLRB, 808 F.2d 526, 541–542 (7th
Cir. 1986), and cases cited there.
3 We note that the Employer, in arguing that Reyes and Bernados
were union agents, also relies on employee Lynete De Fiesta-
Saguid’s testimony that she had heard rumors from various employ-
ees that several union adherents were receiving money from the Peti-
tioner. The hearing officer, however, discussed this testimony while
recommending that the Employer’s Objections 24 and 25 be over-
ruled and properly found that it ‘‘is ambiguous and no more than
hearsay.’’ Because we agree with the hearing officer’s further find-
ing that De Fiesta-Saguid’s testimony fails to establish that the Peti-
tioner actually paid any money to supporters like Reyes and
Bernados, we conclude that this hearsay evidence does not constitute
any basis for finding that these employees were union agents.
Crestwood Hospitals, Inc. d/b/a Crestwood Con-
valescent Hospital and Health Care Workers
Union, Local 250, Service Employees Inter-
national Union, AFL–CIO, Petitioner. Case 20–
RC–17047
March 31, 1995
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held August 8, 1994, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 87 for and 46 against,
the Petitioner, with 1 challenged ballot, an insufficient
number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted the hearing officer’s
findings1 and recommendations,2 and finds that a cer-
tification of representative should be issued.
We adopt, inter alia, the hearing officer’s rec-
ommendation to overrule the Employer’s Objection 28,
which alleges that the Petitioner violated the rule of
Milchem, Inc., 170 NLRB 362 (1968), because its
agents or supporters engaged in electioneering outside
the polling place. We stress that Milchem applies only
to prolonged conversations between agents of a party
to the election and employees who are waiting in line
to cast their ballots. Although the Employer contends
that employees Lorna Reyes and Marie Bernados were
the Petitioner’s agents during the organizing campaign,
the credited evidence on this issue merely shows that
Reyes was a member of the Petitioner’s organizing
campaign and that, following the election, both Reyes
and Bernados were elected to serve as interim shop
stewards.3 It is well established that evidence of this
nature is insufficient to support a finding that the em-
ployee advocate acted as the Union’s general agent for
organizing purposes. See Advance Products Corp., 304
NLRB 436 (1991); and United Builders Supply, 287
NLRB 1364 (1988). Thus, we find that the Petitioner
was not responsible for any misconduct by Reyes and
Bernados during the balloting.
We further find that none of the evidence establishes
that remarks by Reyes and Bernardos to fellow voters
while they were waiting in line meets the standard for
finding that voting line conduct by employees who are
not agents of parties is grounds for setting aside the
election. Thus, even accepting as true the testimony of
the Employer’s election observer, Betty Bell, that
Reyes and Bernados walked among about 25 employ-
ees and talked to them as they waited in line to vote,
we do not find that their actions so substantially im-
paired the employees’ free choice that the election
must be set aside based on objectionable third party
conduct. See Southeastern Mills, 227 NLRB 57 (1976).
We note that the present case is clearly distinguishable
from Pepsi-Cola Bottling Co., 291 NLRB 578 (1988),
where the Board found election interference because
voters had to pass through a ‘‘gauntlet’’ of chanting
and cheering prounion supporters en route to the poll-
ing place. Accordingly, we find no merit to the Em-
ployer’s exceptions to the hearing officer’s disposition
of this objection.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Health Care Workers Union, Local
250, Service Employees International Union, AFL–
CIO and that it is the exclusive collective-bargaining
representative of the employees in the following appro-
priate unit:
All full-time and regular part-time service and
maintenance employees, including certified nurs-
ing assistants, nursing aides, dietary aides, cooks,
housekeeping employees, janitors, laundry em-
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees, dishwashers, and activities assistants em-
ployed by the Employer at its Vallejo, California,
facility; excluding office clerical employees, reg-
istered nurses, licensed vocational nurses, guards,
and supervisors as defined by the Act.