Cumberland Nursing & Convalesecent Center

National Labor Relations Board - Board Decisions

Mar 11, 1980

248 N.L.R.B. 322 (N.L.R.B. 1980)

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cumberland Nursing & Convalescent Center and
Retail Store Employees Union, Local 692,
United Food & Commercial Workers Interna-
tional Union, AFL-CIO, Petitioner. Case 5-
RC-10889
March 11, 1980
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted under the supervision of the Regional
Director for Region 5 among the employees in the
appropriate unit on September 7, 1979. At the con-
clusion of the election, the parties were furnished a
tally of valid ballots which showed that, of ap-
proximately 93 eligible voters, 48 cast ballots for,
and 28 cast ballots against, Petitioner; 16 ballots
were challenged, a number insufficient to affect the
outcome of the election. On September 13, 1979,
the Employer filed objections to the election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Regional Director conducted an investigation
of the issues raised by the objections and on Octo-
ber 16, 1979, issued and served on the parties his
Report on Objections. In his report, the Regional
Director recommended that the Employer's objec-
tions be overruled in their entirety and a Certifica-
tion of Representative be issued. Thereafter, the
Employer filed exceptions to the Regional Direc-
tor's report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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 labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The following employees, as stipulated by the
parties, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning
of Section 9(b) of the Act:
All full time and regular part time service and
maintenance employees employed by the Em-
248 NLRB No. 63
ployer at its Cumberland, Maryland location,
including nurses' aides, L.P.N.'s, orderlies, Di-
etary, Housekeeping, Laundry and Mainte-
nance employees, but excluding R.N.'s, office
clerical employees, guards and supervisors as
defined in the Act.
5. The Board has considered the Regional Direc-
tor's report, the exceptions and supporting brief of
the Employer, and the entire record in this case,
and hereby adopts the Regional Director's findings,
conclusions, and recommendations, pertinent por-
tions of which are attached hereto as an appendix,
with the following modifications:'
The Employer's Objection 5 states that "[t]he
Petitioner, by its agents, officers, supporters, and
certain individuals acting in concert with Petition-
er, engaged in campaign tactics proscribed by the
Act." We adopt the Regional Director's recom-
mendation that Objection 5 be overruled in its en-
tirety. We are, however, of the opinion that the
portion of Objection 5 relating to the Board's hold-
ings under Milchem, Inc.2 warrants further discus-
sion.
The evidence presented by the Employer raises
"the important and recurring question of whether a
hearing to develop the facts is required in order to
make the necessary determinations concerning the
issues raised by the objections to this election."3 In
our view the Employer has failed to present a
prima facie case warranting a hearing on Objection
5, which alleges, inter alia, objectionable election-
eering proscribed by Milchem.
L In the absence of exceptions thereto, e adopt proforna the Region-
al Director's recommendation that the Employer's Objections I. 3, 4, and
6 he oerruled
In adopting the Regional Director's recommendation that the Employ-
er's Objection 2 be overruled, Member Penello finds no merit in the mis-
representation allegations for the reasons set forth in Shopping Kar! Food
Woarkr. Inc. 228 NLRB 1311 (1977); see his dissenting opinion in General
Knit of Colifrliu, I . 239 NLRB No 101 (1978) Chairman Fanning
and Member Jenkins ssould adopt the Regional Director's recommenda-
tion that Objection 2 be oerruled for the reasons set out in his report.
pertinent portions of which are attached hereto
2 170 NLRB 362 (1968)
3 'ewport News Shipbuilding and Dry ' Dock Companvy. 239 NLRB No
14 (1978), enfd in relevant part 594 F2d 8 (4th Cir 1979)
The sum total of the eidence presented by the Employer ith respect
to this portion of Objection 5 is the sssorn statement of a employee
I bias in lie aitilg to ote around five after two because I
thought it [the election] started at 2:15 p.m it did not start until 2:40
p m While 1 as waiting there, the home's la yer and the four
union representatives sere in the lounge On a couple of occasions
one of the representatives. a tall thin man with a beard. came out of
the room and talked to sonime of the employees aiting in line I
could not hear what as said
lust before the polls open [ic]. Kell. the attorne 5 . and the union
representa;lt es left the area Hlowerer. the tall hil man stayed for a
couple minutes longer talking to a couple mplosces. One of the em-
plo\ees W.as Virginia Strattoin: I cannlot recall he other At the time
the man as talking to the employees employees had started to go in
to sote
CUMBERLAND NURSING & CONVALESCENT CENTER 323
The principle clearly enunciated in Milchem is
that "the potential for distraction, last minute elec-
tioneering 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 the
nature of the conversations. .... This rule is noth-
ing more than a preventive device to enforce the
ban against electioneering in polling places .... "4
It is equally clear, however, that the Milchem stan-
dard, although "strict," was never intended, either
in substance or application, to be transformed into
a per se rule requiring a hearing in all instances.5
Thus, it is essential that the party asserting objec-
tionable conduct of the kind proscribed by Mil-
chem must present a prima facie case so as to war-
rant a hearing on those issues. As we recently
stated in Newport News:
. . where the objecting party presents prima
facie evidence demonstrating that the election
was not fairly conducted, we do not hesitate
to make the necessary investments of time and
money, nor can we then avoid the concomi-
tant delay in making our procedures effective.
On the other hand, where there has been no
prima facie showing of misconduct which
would warrant setting aside the election and
there are no additional facts which need to be
developed, the overruling of objections on the
basis of an administrative investigation is "not
only proper but necessry to prevent dilatory
tactics by employers or unions disappointed in
the election returns."6
Newport News also points out that "[i]n denying a
hearing on an issue, it is necessary to assume the
truth of the factual assertions of the objecting party
relating to specific evidence concerning specific
events and specific individuals."7 It is, therefore,
instructive to view the Employer's evidence in its
totality. There is no evidence that Petitioner's rep-
resentative engaged in sustained conversations with
employees waiting to vote, nor is there any evi-
dence that he engaged in electioneering at the poll-
ing place. Indeed, it is apparent that any remarks
made by Petitioner's representative to employees
' 170 N RH lt 32 -363
M. dlche, also stated (at 3)
We iltend, of course. hai our applcatlon of his rule ill he In-
formed hb a sense of realism The rule conleniplale that conllersa-
tioon helueen a party and oters w hde the latler are in a polling area
asaiting to ole uill normally. upon the filing of proper hljecton.
he deemed prejudicial x ithrout in estigation ito the c tentt of lhe
remark Biiut thl, doe, lot noae hial ali chanice. iolated. innoi uouI
coIllel t r irlqiIir h ant enplo cer or Url ion fficial I a soter still
necesaril oid the election 'e ,sill be guided h Ihce nlasxll tha
"the la, do), lnot ctcerrn Itself ith trifle "
R .Vetiporlt Ai 239 NI RB Ni 14, ad caes c ited thereill
Idd
occurred outside the actual polling area and possi-
bly prior to the opening of the polls. Moreover, the
Employer's evidence is incomplete and conflicting,
for not only does the proffered evidence fail to dis-
close unequivocally that the polls were in fact open
at the time the conversation occurred; but, addi-
tionally, it is not certain where the employees were
at the time the alleged prohibited conduct was sup-
posed to have occurred. We note, too, that the affi-
davit in question clearly indicates that the alleged
union representative (unidentified as to name or po-
sition) engaged in conversation with an employee
whose identity was known to the affiant. The Em-
ployer, however, has made no attempt to present
evidence as to the substance of the conversation or
more clearly delineate its duration; nor has the Em-
ployer claimed that such evidence was somehow
unavailable to it. 8 Simply put, it is not enough for
the objecting party's evidence merely to imply or
suggest that some form of prohibited conduct has
occurred.
Thus, assuming the truth of the Employer's as-
sertions, it is clear that the conduct alleged as ob-
jectionable does not rise even to the "strict" stan-
dard enunciated by Milchem, and, therefore, fails to
establish a prima facie case which warrants setting
aside the election herein.
Since no substantial and material issues have
been raised requiring a hearing, we adopt the Re-
gional Director's recommendation that the objec-
tions be overruled in their entirety. Accordingly, as
Petitioner has received a majority of the valid
votes cast, we shall certify it as the collective-bar-
gaining representative of the employees in the ap-
propriate unit.
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Retail Store Employees
Union, Local 692, United Food & Commercial
Workers International Union, AFL-CIO, and that,
pursuant to Section 9(a) of the National Labor Re-
lations Act, as amended, the said labor organization
Although i/cllthem seems tit Implh that the substance of these "pro-
longed coll'ersatiorls het een represen tatives of aIl part5 i the elec i tll
and siters "ailing tio cast hallots" skill iot be examined. the Board. i ts
subsequrrnl Iapplications of .liidr hemir has oftren relied iti the uhbta3lnce of
the w ords spoken a, one of the factors I l determininig .hether the con-
dact in question 'sas objectionabhle See. fior example. MdI,dr i lerd
Cirot .Servic , C-l, 187 NI RB 82 19701.ttlirei .Ia thiu/ullrlig (-,iIpau-
nv I.c 21/t N1 RH 02 19'2) 17 Ti .$I,ad Corrotio. ttHrriti,, Diitoti.
189 NI RI I19() 19
7
1: H i/w.n P,lNair tlid Rarl Pa'o,iir , (C-Pirl/rlltp
d h ,i Pwooi r iii ro (ompti. 22; NI RH 451 11') R , i Si/i il/t d
I rntiti (rpiritto.i 22' Ni RH
3 '5 I 1 7 )1 7 1 t./gt i.t, d li/ilrl/i
I i,. 1.,., '6 ,itd l It l)Ii n .1 . t , t eI lirrIr o/ I . It ' n '. 240
NI RH N 124 (l'i \1lld. 1 t'l' A ,i %,l tIrre,ll tc[ItiIII/td hc
1l11st is it alreilisic st. i l llat.il k i.hll II ilsit iI iTlproh.able p rl, i O at
siri. iid deed o)t the part ,I' the pallties Oir Ho,1d .11get"
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is the exclusive representative of all the employees
in the following appropriate unit for the purposes
of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions
of employment:
All full time and regular part time service
and maintenance employees employed by the
Employer at its Cumberland, Maryland loca-
tion, including nurses' aides, L.P.N.'s, order-
lies, Dietary, Housekeeping, Laundry and
Maintenance employees, but excluding R.N.'s,
office clerical employees, guards and supervi-
sors as defined in the Act.
APPENDIX
In further support of Objection No. 5, Employer Wit-
ness B stated that on several occasions during the pre-
election conference, she observed one of the Petitioner's
representatives (apparently Dwight Meade), talking to
some employees who were waiting in line for the polls
to open.
Witness B testified that following the pre-election con-
ference, all of the parties' representatives left the area
except Meade, who remained a few moments longer talk-
ing to employees in line. Witness B claims that employ-
ees had already started to enter the room where the elec-
tion was taking place while the Petitioner's representa-
tive was talking to the employees.
Meade stated that during the pre-election conference
he stood in the doorway in the break room. On a few
occasions, some of the employees who were in line to
vote made comments to him, to which he responded. He
claimed that the comments were innocuous, and related
in no way to the election.
Meade further stated that as he left the area with the
other Petitioner's representatives, two employees walked
over to him and pinned "smiley face" buttons on him,
telling him they got them especially for him. He told
them he had to go, and left the area immediately without
making further comments.
The Employer maintains that this is a clear violation
of the Milcherm4 rule, warranting the setting aside of the
election. Under this rule, in cases where a party to the
election conducts conversations with employees in the
voting area who are waiting to vote, the actions will
normally be deemed prejudicial and the election will be
set aside. However, the Board pointed out that the appli-
4 Milh,,. Ic., 170 NL RB 362
cation of this rule "will be informed by a sense of real-
ism," and that "this does not mean that any chance, iso-
lated, innocuous comments or inquiry by an employer or
union official to a voter will necessarily void the elec-
tion."
Thus, it appears that in this case the Petitioner's repre-
sentative did not engage in any lengthy conversations
with employees waiting in line to vote, nor does the evi-
dence show that he engaged in electioneering at the poll-
ing site. Accordingly, the undersigned recommends that
Employer's Objection Nos. I and 5 be overruled in their
entirety.
Objection No. 2
The Petitioner, by its agents, officers, supporters,
and certain individuals acting in concert with Peti-
tioner, engaged in misrepresentations of fact and
law, promise of benefit, threat of reprisal, and other
acts and conduct which warrant setting aside the
election.
The Employer bases this objection on a telegram sent
by Petitioner's counsel to Kelvin Berens, counsel for the
Employer, on September 6, 1979. The telegram infers
that Berens is not licensed to practice law in the State of
Maryland, and requests the name of the Maryland attor-
ney with whom Berens is associated. The telegram also
refers to Berens' refusal to debate with the Petitioner;
Petitioner's hope that the Employer would not hold cap-
tive audience speeches within the 24-hour period prior to
the election; and to the fact that the Petitioner believed a
member of management had been seen outside a general
meeting held by the Petitioner on August 31, 1979.
The Employer contends that since Berens conducted
the Employer's entire pre-election campaign, and the
telegram attacked his credibility, it completely discredit-
ed the Employer's campaign with no opportunity to
rebut the facts in the telegram. The Employer presented
witnesses who testified that prior to the election, they
heard some employees make statements to the effect that
Berens was not a legitimate attorney, and that manage-
ment officials had been seen outside the Petitioner's
meeting.
There was no evidence submitted to show that any
employees were made aware of the telegram in question
prior to the election, or that any of the employees who
allegedly made the statements described above were
agents of the Petitioner. Accordingly, the undersigned
recommends that Employer's Objection No. 2 be over-
ruled.