Elmcrest Convalescent Hospital

National Labor Relations Board - Board Decisions

Sep 27, 1968

173 N.L.R.B. 38 (N.L.R.B. 1968)

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Convalescent Hospital Management Corp. d/b/a Elm-
crest Convalescent Hospital and Hospital and
Professional Employees Division , Local 399,
Building Service Employees International Union,
AFL-CIO, Petitioner . Case 21-RC-10798
September 27, 1968
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Pursuant to a Stipulation for Certification upon
Consent Election, executed on April 19, 1968, an
election by secret ballot was conducted on June 6,
1968, under the direction and supervision of the
Regional Director for Region 21, among the employ-
ees in the stipulated unit. At the conclusion of the
election, the parties were furnished with a tally of
ballots, which showed that, of approximately 38
eligible voters, 36 cast ballots, of which 14 were for
the Petitioner, none were for the Intervenor,' 18
were cast against the participating labor organizations,
and 4 were challenged. The challenged ballots were
sufficient in number to affect the results of the
election. Thereafter, on June 13, 1968, the Petitioner
filed timely objections to conduct affecting the
results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional Direc-
tor conducted an investigation of the challenges and
objections, and, on July 24, 1968, issued and duly
served upon the parties his Report on Challenged
Ballots and Objections, in which he recommended
that the challenges to the ballots of Lois Bryan, Mae
Rice, and Doris Deane be overruled, and that the
challenge to the ballot of Jessie Morales be sustained,
but inasmuch as the ballots of Bryan, Rice, and Deane
were not determinative of the results of the election,
that their ballots not be opened and counted. With
respect to the Petitioner's objections, the Regional
Director recommended that objections 2 and 3 be
overruled, that objection 1 be sustained, and, accord-
ingly, that the election conducted on June 6, 1968,
be set aside and a second election directed. There-
after, the Employer filed timely exceptions to the
Regional Director's Report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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 organizations involved claim to repre-
sent 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 Section
2(6) and (7) of the Act.
4. We find, in accord with the stipulation of the
parties, that the following unit is appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All employees of the Employer, including dietary
employees, maids, janitors, storekeepers, mainte-
nance employees, ground keepers, orderlies, nur-
ses' aides, licensed vocational nurses, laboratory
helpers and laundry employees; excluding all office
clerical employees, professional employees, physi-
cians, registered nurses, guards, watchmen and
supervisors as defined in the Act.
5. The Board has considered the Regional Direc-
tor's Report, the Employer's exceptions, and the
entire record in this case, and hereby makes the
following findings.'
By its objection 1, the Petitioner alleges that the
Intervenor published false and misleading material
which misrepresented the wage rates in contracts
signed by the Petitioner with other nursing home
facilities located in the State of California, materially
affecting the results of the election. The handbill
relied on by the Regional Director in sustaining
objection 1 was distributed by the Intervenor on June
5, the day preceding the election, and stated that the
"typical" contract entered into between the Petition-
er and several Hillhaven Convalescent hospitals con-
tained the following extract:
1 Professional , Hospital Employees Union, Local Union No. 986,
International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America.
2 The Employer excepted only to the Regional Director's finding
and conclusion with respect to objection 1. In the absence of
exceptions , we adopt , pro forma , the Regional Director 's other findings
and conclusions
173 NLRB No. 7
ELMCREST CONVALESCENT HOSPITAL 39
399's WAGE RATES
Starting 3 Mo 6 Mo 18 Mo 30 Mo
Classification Wage Employ Employ Employ Employ
Nurses ' Aides $1 40 $145 $150 $1 55 $1.60
Orderly 1.50 1 55 1 60 1 65 1 70
Janitor . ... 1.50 155 1 60 1 65 1 70
Housekeeping 1 35 1.40 1.45 1 50 1 55
Laundry 1 35 1 40 1 45 150 1.55
First Cook .. 1 85 1 90 1 95 2 00 2 05
Cook 1.65 170 1 75 1 80 1.85
Kitchen Helpers 1 35 1 40 1.45 1 50 1 55
LVN ... . 2 25 2 30 2 35 2 40 2.45
The Regional Director found that the extract set
forth above did not represent current rates, and that
the wage clause in the Hillhaven contract contained a
provision requiring that wage rates for the several
classifications be adjusted upward in the event of any
change in the rates provided for under the California
Minimum Wage Law. The Regional Director also
found that the California minimum wage rate was
increased to $1.65 on February 1, 1969, and that the
investigation revealed no evidence that the Petitioner
had entered into any contracts providing for wages
lower than the minimum rate since that date. Presum-
ing that the employees would be fully aware of the
$1 65 minimum wage rate, the Regional Director
concluded, nevertheless, that the employees might
have believed from the contents of the Intervenor's
handbill of June 5, that the Petitioner could, and did,
negotiate rates that fell below the minimum. Inas-
much as the Regional Director concluded that the
Intervenor's handbill was distributed at a time which
precluded the Petitioner from issuing an effective
reply, he recommended that objection 1 be sustained.
For the reasons set forth below, we do not agree.
The record before us reveals that the issue of the
wage rates under the Petitioner's contracts was
interjected into the campaign at least a week prior to
the election. As the Regional Director found, approxi-
mately 1 week before the election the Intervenor
issued a handbill which stated, inter alia, that the
Petitioner was "still signing contracts calling for as
low as $1.35 per hour." However, this misrepresenta-
tion was corrected by a letter sent by the Employer
to the employees 2 days before the election. The
Employer's letter contained references to the wage
rates in the Hillhaven contract and the California
Minimum Wage Law, and stated.
... as you might guess, nurses' aides start at $1.65
an hour, the minimum wage required by law 3
The Petitioner did not reply to the Intervenor's
handbill.
Under these circumstances, we cannot agree that
the contents of the Intervenor's handbill of June 5
constituted such a substantial misrepresentation or
departure from the truth as could reasonably be
expected to have a significant impact on the elec-
tion.4 Furthermore, in our view, the issue of the wage
rates under the Petitioner's contracts was interjected
into the campaign sufficiently in advance of the
election to allow the employees to make an indepen-
dent evaluation of the Intervenor's assertions, and
likewise, to allow the Petitioner an adequate opportu-
nity to refute any inaccuracies, misstatements, or
omissions 5 Accordingly, we shall overrule the Re-
gional Director's recommendation as to objection 1,
and as the votes cast for the Petitioner and the
Intervenor were less than majority of the valid votes
cast, we shall certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for either Hospital and
Professional Employees Division, Local 399, Building
Service Employees International Union, AFL-CIO,
or Professional, Hospital Employees Union, Local
Union No. 986, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, and that neither of the said labor organiza-
tions is the exclusive representative of the employees
in the unit found appropriate within the meaning of
Section 9(a) of the Act.
3 Emphasis as in the original.
4 Hollywood Ceramics Company, Inc , 140 NLRB 221, 224
5 General Electric Company, Specialty Control Department, 162
NLRB No 91