Forest Park Manor Nursing Home

National Labor Relations Board - Board Decisions

Mar 17, 1969

174 N.L.R.B. 1200 (N.L.R.B. 1969)

1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Forest Park Manor , Inc., d /b/a Forest Park Manor
Nursing Home and St. Louis Local Joint
Executive Board of Hotel & Restaurant Employees
& Bartenders International Union , AFL-CIO,
Petitioner . 14-RC-5936
March 17, 1969
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 by the parties and
approved by the Regional Director on May 16,
1968, an election by secret ballot was conducted on
June 13, 1968, under the direction and supervision
of the Regional Director for Region 14, among the
employees in the stipulated unit. At the conclusion
of the election, the parties were furnished with a
tally of ballots which showed that of approximately
52 eligible voters, 47 cast valid ballots, of which 10
were for, and 37 against, the Petitioner. No ballots
were challenged. There were no void ballots.
Thereafter, the Petitioner filed timely objections to
conduct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on July 30, 1968,
issued and duly served upon the parties his Report
on Objections in which he recommended that
objection 1, 3, 4, and 5 be overruled in their
entirety, that objection 2 be sustained, that the
election be set aside, and that a second election be
directed. Thereafter, 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
I 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 Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of the employees of
the Employer within the meaning of Section 9(c)(1)
and Section 2(6) and (7) of the Act
4 The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees excluding the activities director,
office clerical and professional employees, guards,
and supervisors as defined in the Act.
5 The Board has considered the Regional
Director's Report and the Employer's exceptions
thereto, and makes the following findings.
The sole objection in which the Regional Director
found merit,' related to comments made by Mrs.
Stimson, a clinical psychologist, at an employee
meeting on May 29, 1968, 2 weeks before the
election. The objection alleged that the Employer
promised to give employees I day a month as and
for sick leave
As appears from the Regional Director's Report,
Stimson explained that there had been no censensus
as to what the employees wanted in the way of sick
leave which could be presented to management at
some future appropriate time. Stimson mentioned
that the licensed practical nurses and the registered
nurses already enjoyed certain sick leave benefits.
An employee made a recommendation as to the
amount of sick leave which would be fair, and
Stimson then polled the employees to determine
what they felt would be a fair amount of sick leave.
Mrs. Steithel, the director of nurses, was present
and commented that she had previously been
employed at a hospital where 12 days sick leave
were given annually. In the Regional Director's view
the polling of the employees to determine the
amount of sick leave the employees considered to be
fair, clearly conveyed to the employees the belief
and idea that the Employer intended to grant sick
leave benefits. The Regional Director also concluded
that Steithel's presence at, and participation in, the
meeting and discussion constituted ratification and
condonation of Stimson's conduct. Accordingly, he
recommended that the objection be sustained and
the election set aside.
We do not agree. This "polling" incident followed
by a week an Employer meeting with employees
concerning the Union, at which meeting an
employee inquired why they had no sick leave. The
Employer's vice-president replied that he was not
free to say at that time Mrs. Stimson also attended
that meeting, and a week later at a meeting of the
type she regularly held to explore employee and
other problems at the nursing home, she brought up
the matter, saying there was no consensus of what
the employees wanted in the way of sick leave, and
then took a poll of those present. Although some
implication of eventual benefit is perhaps inherent in
this discussion and poll, no commitment was
suggested. According to the Employer the discussion
in question lasted but a minute or two Inasmuch as
the Employer here did not initiate the discussion of
sick leave benefits and later did no more than probe
employee sentiment through Mrs. Stimson at a
meeting of a type regularly held to explore
'The Regional Director dismissed objection I , 3, 4, and 5 As to the
overruling of these objections , to which no exceptions were taken , we adopt
pro forma the Regional Director ' s Report
174 NLRB No 179
FOREST PARK MANOR NURSING HOME 1201
employees problems,2 we are not prepared to treat a
probe of this sort as a promise of benefit simply
because it occurred in the critical period before the
election Therefore, contrary to the Regional
Director, we overrule Objection 2.
'if, as the Employer claims , head nurse Steithel herself participated in
the discussion and was rebuked on one occasion by Stimson , we would
view as doubtful the Regional Director ' s conclusion that Steithel ' s presence
constituted ratification of Stimson ' s conduct In view of our disposition
herein , we do not find it necessary to reach the issue
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for St . Louis Local Joint
Executive Board of Hotel & Restaurant Employees
& Bartenders International Union , AFL-CIO, and
that said labor organization is not the exclusive
representative of the employees in the unit found
appropriate , within the meaning of Section 9(a) of
the National Labor Relations Act, as amended