Englewood Hospital

National Labor Relations Board - Board Decisions

Aug 25, 1995

318 N.L.R.B. 806 (N.L.R.B. 1995)

806
318 NLRB No. 99
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 By unpublished decision dated September 30, 1993, the Board
adopted the Acting Regional Director’s decision remanding for fur-
ther hearing Objections 3, 6, 9, and additional objectionable conduct
discovered in the Acting Regional Director’s investigation, and over-
ruling Objections 7, 10, and 11. The Petitioner withdrew Objections
1, 2, 4, 5, 8, and 12.
Prior to the close of the hearing, the Petitioner withdrew Objection
6 and the objection concerning additional objectionable conduct. In
the absence of exceptions, we adopt, pro forma, the hearing officer’s
recommendation to overrule Objection 3.
2 The election in the third unit was conducted in Case 22–RC–
10656, and it is not involved herein.
3 The Employer has requested oral argument. We deny this request
because the record and the briefs adequately present the issues and
the parties’ positions.
Englewood Hospital and Hospital Professionals and
Allied Employees of New Jersey, AFT/AFL–
CIO, Petitioner. Cases 22–RC–10655 and 22–
RC–10665
August 25, 1995
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS STEPHENS, BROWNING, AND
TRUESDALE
The National Labor Relations Board, by a three-
member panel, has considered objections1 to elections
held in three separate units on December 17 and 19,
1992,2 and the hearing officer’s report recommending
disposition of them. The elections were conducted pur-
suant to a Decision and Direction of Election. The re-
vised tally of ballots in the unit of nonprofessional em-
ployees was 286 for and 301 against the Petitioner,
with 10 challenged ballots, an insufficient number to
affect the results. The tally of ballots in the unit of
technical employees was 43 for and 86 against the Pe-
titioner, with 12 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs3 and adopts the hearing officer’s
findings and recommendations only to the extent con-
sistent with this decision.
The Petitioner contends in Objection 9 that the Em-
ployer interfered with the election by creating literature
or leaflets which contained negative and threatening ra-
cial or ethnic references, including the reproduction of
a Nazi swastika, and by discussing that literature in
captive audience meetings with employees and assert-
ing that the literature had been produced by the Peti-
tioner and sent to the Employer’s management offi-
cials. Although the hearing officer did not find that the
Employer’s management officials either created the
document at issue or attributed its creation to the
Union, he, nevertheless, found merit in the Petitioner’s
Objection 9 and recommended that the election be set
aside. We disagree.
According to the credited testimony, Daniel Kane,
the Employer’s president and chief executive officer,
held several meetings with employees during the criti-
cal period. Kane discussed his view of the drawbacks
and potential liabilities if the employees selected the
Petitioner as their bargaining representative. After dis-
cussing the subjects of collective bargaining, strikes,
and arbitration, Kane mentioned that employees had
complained to him about harassment by other employ-
ees during the campaign. Kane stated that he also had
been harassed, and he held up a letter and said,
‘‘[T]his is what I’ve received and I’m angry over it.’’
Kane then circulated among the employees an anony-
mous letter that he said he had received. The letter
reads:
You will get it sooner or later. Its [sic] only a
matter of time you Jew mother fucker. We know
where you live. Tenafly. Tenafly.
(Kane apparently resides in Tenafly, New Jersey.) The
letter also contained a reproduction of a swastika and
a photograph of David Duke.
Kane told the employees that he was not saying, nor
was there any proof, that the Petitioner was responsible
for the letter. Instead, Kane said that the ‘‘environment
that created animosity between employees was what
might generate’’ such a letter.
The hearing officer found that Kane’s presentation
of the letter during the critical period in the context of
antiunion meetings was an attempt to inflame and in-
cite religious or racial tensions during the campaign.
The hearing officer concluded that the introduction of
the document during Kane’s campaign speeches re-
quired more than the weak disclaimer expressed by
Kane, i.e., ‘‘I am not saying that this letter was sent
by the Union.’’ The hearing officer reasoned that the
employees were, at the least, provoked to contemplate
the Petitioner’s responsibility for and involvement in
the preparation and mailing of the letter. He further
found that Kane’s presentation of the letter could not
be characterized as merely casual remarks, but was a
deliberate attempt by the Employer in numerous for-
mal campaign meetings to overstress and exacerbate
racial and/or religious feelings by irrelevant, inflam-
matory appeals during the critical period. Applying the
Board’s policy set forth in Sewell Mfg. Co., 138 NLRB
66 (1962), the hearing officer found that Kane’s con-
duct interfered with the employees’ free choice in the
election, and he recommended that the election should
be set aside on the basis of Objection 9.
In Sewell, supra, the Board held that it would set an
election aside when a party embarks on a campaign
which seeks to overstress and exacerbate racial feelings
by irrelevant, inflammatory appeals to racial prejudice.
The Board, however, also made clear that not every ra-
cial reference made during an election campaign is ob-
807ENGLEWOOD HOSPITAL
4 Bancroft Mfg. Co., 210 NLRB 1007, 1008 (1974) (quoting from
Sewell).
5 Benjamin Coal Co., 294 NLRB 572, 573 (1989).
6 See Coca-Cola Bottling Co., 232 NLRB 717 (1977). Compare
YKK (U.S.A.), Inc., 269 NLRB 82 (1984).
7 See also Catherine’s Inc., 316 NLRB 186 (1995); Brightview
Care Center, 292 NLRB 352 (1989).
8 Our dissenting colleague agrees with us that Kane did not en-
dorse or appeal to racial prejudice. Under Sewell, that should be the
end of the inquiry. Instead, our dissenting colleague would find the
Sewell violation on the ground that Kane’s denunciation of the hate-
ful ethnic material was a ‘‘thinly veiled attempt’’ to equate the
Union’s solicitation of employees with harrassment. In our view, the
facts here do not warrant such an inference. Further, our dissenting
colleague’s view that Kane’s reference to an ‘‘environment that cre-
ated animosity’’ impermissibly injected racial matters into the cam-
paign within the meaning of Sewell, has no basis in Board or court
precedent.
jectionable. The Board in Sewell distinguished objec-
tionable conduct from isolated, casual, prejudicial re-
marks, and emphasized that it did not intend to con-
demn relevant campaign statements merely because
they have racial overtones.
Thus, in applying Sewell, the question to be an-
swered is whether the statements at issue appeal to ra-
cial or religious prejudice against a particular group
and are inflamatory and irrelevant. Applying that
standard here, we cannot agree with the hearing offi-
cer’s finding that Kane’s conduct was objectionable.
Simply put, we find that Kane’s remarks ‘‘[did] not
deliberately seek to overstress and exacerbate racial
feelings by irrelevant, inflammatory appeals.’’ Id. at
71–72.
Numerous decisions since Sewell support our deci-
sion here. In these cases the Board has consistently re-
iterated that ‘‘the rule in Sewell is applicable only in
those circumstances where it is determined that the
‘appeals or arguments can have no purpose except to
inflame the racial feelings of voters in the election.’’’4
The Board has also emphasized that the rule of Sewell
‘‘concerns prejudiced campaign propaganda issued by
a party to the election, not expressions of employee
bias independent of the party’s own actions.’’5 As the
Board explained in Baltimore Luggage Co., 162 NLRB
1230 (1967):
Consequently, in Sewell, we did not lay down the
rule that parties would be forbidden to discuss
race in representation elections. Rather, we set
aside an election because the campaign arguments
were inflammatory in character, setting race
against race—an appeal to animosity rather than
to consideration of economic and social condi-
tions and circumstances and of possible actions to
deal with them. [162 NLRB at 1233.]
In our view, Kane’s conduct here did not rise to the
level of a sustained appeal to racial prejudice of the
type condemned in Sewell and its progeny.6 Kane’s re-
marks did not appeal to feelings of racial and religious
bias, nor did they seek to pit race against race. Rather,
they denounced such feelings. Although Kane repeated
his discussion of the letter in several meetings, it cer-
tainly was not a centerpiece of the Employer’s cam-
paign. Thus, unlike in Sewell, the record does not
show that race was a significant aspect of the cam-
paign in this case. In addition, as noted above, there
is no evidence that the Employer created the letter in
question, and Kane did not attribute it to the Petitioner.
We find the Board’s decision in Beatrice Grocery
Products, 287 NLRB 302 (1987), to be particularly in-
structive and applicable here. In Beatrice, the Board
found that a union representative’s statement involving
an alleged racial appeal to employees did not warrant
setting the election aside. In so finding, the Board stat-
ed that ‘‘[b]ecause the statement represented an effort
to denounce racial prejudice in another (the Employer),
rather than to incite prejudice against a particular racial
or religious group. . . it does not constitute the kind
of gratuitous appeal to racial prejudice that Sewell
brands as objectionable conduct.’’ 287 NLRB at 303.7
Similarly, Kane’s remarks did not attack a particular
racial, ethnic, or religious group, nor did they con-
stitute a bigoted attack on any individual. In these cir-
cumstances, we fail to discern how Kane’s comments
could have reasonably tended to interfere with the
election by destroying the atmosphere necessary to the
exercise of free choice.8 Accordingly, we certify the
results of the election.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for Hospital Professionals and Al-
lied Employees of New Jersey, AFT/AFL–CIO and
that it is not the exclusive representative of the em-
ployees in the bargaining units.
MEMBER BROWNING, dissenting.
Contrary to my colleagues, I would adopt the hear-
ing officer’s recommendation, and set the election
aside because the Employer improperly injected racial
prejudice into the campaign.
During preelection meetings with employees, the
Employer’s president and chief executive officer, Dan-
iel Kane, expressed his anger about an anonymous
‘‘hate’’ letter that he said he had received. This letter,
which Kane circulated among the employees, called
Kane a ‘‘Jew mother fucker’’ and threatened that he
would ‘‘get it sooner or later’’ and that the letter’s au-
thors ‘‘know where you live.’’ The letter also con-
tained a reproduction of a swastika and a photograph
of David Duke. Kane told the employees that he was
not claiming that the Petitioner was responsible for the
letter, but rather that the ‘‘environment that created an-
imosity between employees was what might generate’’
such a letter.
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 269 NLRB at 84.
2 Glazers Wholesale Drug Co., 209 NLRB 1152 (1974).
In my view, Kane engaged in objectionable conduct
under Sewell Mfg. Co., 138 NLRB 66 (1962), by ex-
pressly linking the hateful anti-Semitic comments in
the letter he circulated to the Petitioner’s election cam-
paign. In citing to an ‘‘environment that created ani-
mosity between employees,’’ Kane clearly was refer-
ring to the atmosphere that had resulted from the em-
ployees’ organizational efforts and the Petitioner’s
presence at the Employer’s facility. Thus, employee
Melvina Harris credibly testified that Kane advised the
employees that ‘‘these are the type of threats and
things you get when you’re in like, you know, trying
to fight for a union or whatever.’’ Kane thus effec-
tively claimed that the mere fact that some employees
wanted a union created an atmosphere that could incite
racial prejudice in the ugly manner that was manifested
in the letter he circulated among the employees.
In Sewell, the Board held that a party’s injection
into a campaign of irrelevant, inflammatory racial mat-
ters will constitute objectionable conduct. The Board
stated:
What we have said indicates our belief that ap-
peals to racial prejudice on matters unrelated to
the election issues or to the union’s activities are
not mere ‘‘prattle’’ or puffing. They have no
place in Board electoral campaigns. They inject
an element which is destructive of the very pur-
pose of an election. They create conditions which
make impossible a sober, informed exercise of the
franchise. The Board does not intend to tolerate as
‘‘electoral propaganda’’ appeals or arguments
which can have no purpose except to inflame the
racial feelings of voters in the election. [138
NLRB at 71.]
Although strictly speaking, Kane was not himself
endorsing or appealing to racial prejudice, he did raise
the spectre of racial and ethnic hatred as an element
of the election campaign. Further, Kane’s presentation
of the letter to the assembled employees and his com-
ments about it were not germane to any legitimate
issue involved in the election. Kane’s distribution of
the letter was made in the context of his comments
about alleged harassment of employees. Kane’s denun-
ciation of ‘‘harassment,’’ however, was a thinly veiled
attempt to equate legitimate solicitation of employees
during the Petitioner’s campaign with ‘‘harassment.’’
By linking such solicitation and the ‘‘environment’’
created by the organizational campaign to the hateful
ethnic material he was quoting from, Kane sought to
discredit the Petitioner and its campaign in a manner
which impermissibly injected racial and religious prej-
udice into the campaign.
In YKK (U.S.A.), Inc., 269 NLRB 82 (1984), the
Board found objectionable under Sewell a union’s in-
flammatory and prejudicial references to the employ-
er’s Japanese ownership and management. Just as the
Board in YKK, supra, found that there was ‘‘no con-
ceivable way that a reference to beating ‘Japs’ at Pearl
Harbor could be relevant to a legitimate campaign
issue,’’1 I find that Kane’s remarks linking the hate
letter he had received to the Petitioner’s campaign was
unrelated to any legitimate issue facing the employees
during the campaign.
Nor may Kane’s conduct properly be dismissed as
isolated or insignificant. As the hearing officer noted,
Kane, the president of the Employer, disseminated the
letter to large groups of employees at a number of
meetings called to communicate Kane’s antiunion
views. I agree with the hearing officer that, at a mini-
mum, Kane suggested to the employees that the Peti-
tioner was involved in the preparation and mailing of
the letter. The Board has held that a statement to the
effect that the other party in the election would engage
in racial discrimination ‘‘may well be grounds for set-
ting an election aside’’ under Sewell.2 I conclude that
this is just such a case, because the Employer has sug-
gested that the Union, or at least the ‘‘atmosphere’’
created when the employees exercised their right to or-
ganize and choose union representation, created and
spread scurrilous racial and religious threats and ap-
peals.
Accordingly, in the circumstances here, I find that
Kane’s circulation of the letter and his accompanying
remarks made a fair election impossible, and I would
direct a new election.