Hamilton Nursing Home

National Labor Relations Board - Board Decisions

Jun 25, 1984

270 N.L.R.B. 1357 (N.L.R.B. 1984)

HAMILTON NURSING HOME
Hamilton Nursing Home and Service Employees
International Union Local 706, AFL-CIO-CLC,
Petitioner. Case 23-RC-5167
25 June 1984
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret-ballot election was con-
ducted 14 October 1983.1 The tally of ballots
shows 33 for and 34 against the Petitioner, with 1
challenged ballot, an insufficient number to affect
the results.
The Petitioner filed objections to conduct affect-
ing the results of the election. Following an investi-
gation, the Regional Director issued a notice of
hearing on Objections I and 2 and other conduct
discovered during the investigation. A hearing was
conducted 28 November.
On 23 December the hearing officer issued his
report in which he recommended that Objections 1
and 2 be sustained and that the election be set
aside. The Employer filed exceptions to the hear-
ing officer's report.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the hearing officer's
report and the exceptions and has decided to adopt
I All subsequent dates refer to 1983 unless otherwise indicated.
the hearing officer's rulings, 2 findings,3 conclu-
sions, and recommendations, as modified below.
We find, in agreement with the hearing officer,
that the Employer created the impression of sur-
veillance of union meetings. During a conversation
at the nursing home, President Hamilton told em-
ployee Savoy that he knew who was attending
union meetings and that he was "going to be
watching them close." Hamilton then named four
employees who had attended union meetings.
Savoy subsequently reported the conversation to at
least two employees, and they repeated the story to
other employees.
In the circumstances of this case, where a
change of only a few votes would have altered the
election results and where a number of employees
knew of the objectionable conduct by the Employ-
er's president, we find that the conduct substantial-
ly interfered with the election. Cf. Caron Interna-
tional, Inc., 246 NLRB 1120 (1979). Accordingly,
we adopt the hearing officer's recommendation
that the election be set aside and a second election
held.4
[Direction of Second Election omitted from pub-
lication.]
I The Employer claims that the hearing officer's conditioning seques-
tering the Petitioner's witnesses on the Employer's agreeing to sequester
the company president deprived the Employer of the representative of its
choice. The Regional Director denied the Employer's prehearing appeal
of the hearing officer's ruling. We find no merit in this exception. The
hearing officer advised the Employer that sequestration is not required in
representation cases, but agreed to sequester the Petitioner's witnesses if
the Employer's primary witness was also excluded. As sequestration is a
matter of right only in an unfair labor practice case, Fall River Savings
Bank, 246 NLRB 831 (1979), enfd. 649 F.2d 50 (Ist Cir. 1981), we find
that the hearing officer's ruling was a proper exercise of discretion.
3 The Employer has excepted to some of the hearing officer's credibil-
ity findings. The Board's established policy is not to overrule a hearing
officer's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they Ire incorrect. Stretch-Tea Co.,
118 NLRB 1359, 1361 (1957). We find no basis for reversing the findings.
In the absence of exceptions thereto, the Board adopts, pro forms the
hearing officer's recommendation that allegations (a) and (b) be over-
ruled.
4 Because we find that the described objectionable conduct warrants
setting aside the election, we find it unnecessary to address the hearing
officer's finding that the Employer threatened to reduce wages and bene-
fits if the employees selected the Union.
270 NLRB No. 203
1357