Dominican Santa Cruz Hospital

National Labor Relations Board - Board Decisions

Jun 13, 1979

242 N.L.R.B. 1107 (N.L.R.B. 1979)

DOMINICAN SANTA CRUZ HOSPITAL
Dominican Santa Cruz Hospital and Hospital and In-
stitutional Workers Union Local 250, Service Em-
ployees International Union, AFL-CIO, Petitioner.
Case 32-RC-274
June 13, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered objections to an elec-
tion held May 19, 1978,' and the Acting Regional
Director's report recommending disposition of same.
The Board has reviewed the record in light of Peti-
tioner's exceptions and finds merit in the exceptions.
Accordingly, the Board adopts the Acting Regional
Director's findings and recommendations only to the
extent consistent herewith.2
While we agree with the Acting Regional Director
that Petitioner's Objections 2 and 10 raise material
and substantial issues of fact and law which can best
be resolved after an evidentiary hearing, we find it
unnecessary to remand this case for hearing since we
agree with Petitioner to set the election aside on the
basis of uncontroverted evidence submitted in sup-
port of portions of Petitioner's Objection 5.
Petitioner's Objection 5 alleged that the Employer
made various material misrepresentations at a time
which precluded Petitioner from effectively respond-
ing. In support of this objection, Petitioner submitted
the Employer's campaign literature. The Acting Re-
gional Director, after reviewing this literature, recom-
mended that Objection 5 be overruled in its entirety
on the ground that the literature "appears to fall into
the category of what is normally considered permissi-
ble campaign propaganda." He further found that,
even assuming some of the statements were false or
misleading, they do not warrant setting the election
aside under the Board's holding in Shopping Karl
I Engineers and Scientists of California (the Intervenor herein) partici-
pated throughout the proceeding. The election was conducted in three voting
groups pursuant to a Stipulation for Certification Upon Consent Election.
The tallies were: Voting Group A-47 for Petitioner, none for Intervenor,
and 122 against the participating labor organizations. There were three chal-
lenged ballots, an insufficient number to affect the results. Voting Group B-
20 for Petitioner, I for Intervenor, and 43 against the participating labor
organizations. There were two challenged ballots, an insufficient number to
affect the results. Voting Group C-17 for, and 28 against, Petitioner. There
was one challenged ballot, an insufficient number to affect the election's
results.
2 In the absence of exceptions, we adopt, proforma, the Acting Regional
Director's disposition of Petitioner's Objections I and 3 through 9.
Food Market, 228 NLRB 1311 (1977). Because we
find that some of the Employer's campaign state-
ments contain clear threats of reprisals against the
employees if they select a union to represent them, we
deem it unnecessary to address the misrepresentations
issue.3
An example of the Employer's threats appears in
Petitioner's Exhibit I submitted to the Regional Di-
rector in support of its Objection 5 and resubmitted to
the Board in support of its exceptions to the Acting
Regional Director's report.
This exhibit is a memorandum, in question and an-
swer form, addressed "TO: DOMINICAN HOSPI-
TAL EMPLOYEES FROM: YOUR HOSPITAL."
The relevant question and answer are as follows:
QUESTION: Local 250 has told us that we
can't lose any wages or benefits we have now,
and the only way we can go is up. What really
happens?
ANSWER: Under the law, negotiations would
start from scratch. Wages, benefits, and working
conditions you now have would be up for grabs. In
negotiations, you can lose, as has happened to
other employees. In negotiations the union can
only accept or reject what the hospital offers: If
they don't like it, they have two choices:
a. Accept the offer, and all employees are stuck
with it for the full contract period, BUT, you will
still have to pay dues to the union with a union
shop to keep your job at Dominican.
b. Call a strike.
The Employer's answer to its own question as to
"what really happens" in negotiations is coercive on
two fronts. It not only threatens employees with loss
of their present benefits by telling them that such
benefits "would be up for grabs" and that bargaining
"would start from scratch," but it also clearly implies
that the Employer will be intransigent during con-
tract negotiations by assuming a take-it-or-leave-it
posture.
The Board has frequently held that employer state-
ments to employees during a union organizing cam-
paign that bargaining "starts from scratch" and that
present benefits would be "up for grabs": are coercive
within the proscription of Section 8(a)(1) and inter-
fere with the employees' ability to exercise a free
choice in the election,4 particularly where, as here,
such statements are made in the context of other coer-
cive remarks. Similarly, employer statements, as those
here, that a union's only options during contract ne-
The fact that the asserted misconduct is alleged as a mimsrepresentation
does not preclude us from determining that the conduct, or some aspects
thereof. constitutes improper threats.
4 Interstate Engineering, A Division of A -T-O, Inc., 230 NLRB 1, 13 (1977);
York Division, Borg-Warner Corporation, 229 NLRB 1149, 1153-54, and
cases cited therein (1977).
242 NLRB No. 153
1107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gotiations are either to accept the employer's propos-
als or call a strike demonstrate a clear predisposition
not to bargain in good faith, but to assume an intran-
sigent take-it-or-leave-it attitude. Such an attitude, if
taken by an employer during contract negotiations,
violates the employer's statutory obligation to bar-
gain in good faith within the meaning of Section
8(a)(5) and Section 8(d) of the Act. Statements made
during an organizing campaign that the employer will
engage in such a bargaining charade if the employees
select the union restrain and coerce the employees in
their Section 7 right to select a bargaining representa-
tive and violate Section 8(a)(1) of the Act.5 Such
statements, a fortiori, also interfere with the employ-
ees' exercise of an untrammeled choice in the elec-
tion.6 Here the Employer has delivered a double
blow. Its statements that bargaining "would start
Curtin Malheson Scientific. Inc., 228 NLRB 996, 1003 (1977).
6 Ibid.
from scratch" and that the employees' present bene-
fits were "up for grabs" were coupled with, and rein-
forced by, its announcement that it would not bar-
gain in good faith with the Union even if the
employees selected Petitioner to represent them. In
these circumstances, we are persuaded that the Em-
ployer had so befouled the election atmosphere with
threats of reprisal that the election results cannot be
deemed to express the uncoerced desires of the em-
ployees. Accordingly, we shall set aside the election
held on May 19, 1978, and direct a second election at
such time as the Regional Director deems a fair elec-
tion can be conducted.
ORDER
It is hereby ordered that the election held on May
19, 1978, be, and it hereby is, set aside.
[Direction of Election and Excelsior footnote
omitted from publication.]
1108