LaCrescent Constant Care Nursing Center, Inc.

National Labor Relations Board - Board Decisions

Jan 4, 1974

208 N.L.R.B. 115 (N.L.R.B. 1974)

LACRESCENT CONSTANT CARE NURSING INC.
LaCrescent Constant Care Nursing Center , Inc. and
Minnesota Council #65, American Federation of
State, County and Municipal Employees , AFL-CIO.
Case 18-RC-9536
January 4, 1974
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret ballot election was
conducted among the employees in the stipulated
unit described below. The tally of ballots furnished
the parties showed that of approximately 44 eligible
voters, 38 cast valid ballots, of which 26 were for,
and 12 against, the Petitioner. Thereafter, the
Employer filed timely objections to conduct affecting
the results of the election.
On July 25, 1973, the Acting Regional Director
issued and served on the parties his Report on
Objections, recommending that the objections be
overruled in their entirety and Petitioner be certified
as the exclusive collective-bargaining representative
in the stipulated unit. Thereafter, the Employer filed
timely exceptions to the Acting Regional Director's,
report, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, 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 organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain 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 an appropriate unit
I The Employer's exceptions raise no material issues of fact or law which
would warrant the holding of a hearing or reversing the findings,
conclusions, and recommendations of the Acting Regional Director As
pointed out by the Acting Regional Director, the employees were fully
aware of the Employer's efforts to secure additional income and that the
Employer's income was, to a large extent, derived from the State. Moreover,
the Union was not in a special position to know more than the employees
about the lawsuit whereby the Employer had sought more funds from the
State. In addition, it is clear that the Employer could and did keep the
employees fully posted on its efforts to obtain more funds to operate the
nursing home. In this regard, we particularly note that on May 27, more
115
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time nurses aides,
housekeeping employees, laundry employees,
dietary employees, social activities aide, orderlies,
and maintenance employees; excluding casual
employees, temporary employees, confidential
employees, LPN's, RN's, guards, and supervisors
as defined in the National Labor Relations Act,
as amended.
5. The Board has considered the Acting Regional
Director's report and the Employer's exceptions and
brief, and hereby adopts the Acting Regional
Director's findings, conclusions, and recommenda-
tions.'
As the Petitioner has received a majority of the
valid ballots cast, we shall certify it as the exclusive
bargaining representative of the employees in the
unit found appropriate.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Minnesota Council #65,
American Federation of State, County and Munici-
pal Employees, AFL-CIO, and that, pursuant to
Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the unit found
appropriate herein for the purposes of collective
bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment.
MEMBER KENNEDY, dissenting:
Contrary to my colleagues, I would find a
substantial misrepresentation of the Employer's
financial condition by the Petitioner, and therefore
set aside the election.
The Petitioner's representative was found by the
Acting Regional Director to have made false
statements that the Employer 's financial condition
would enable it to increase wages. My colleagues
have concluded, by affirming the Acting Regional
Director's recommendations, that these misrepresen-
tations were not of such a substantial nature as to
warrant vacating the election. I cannot agree with
this conclusion.
Prior to a stipulated election conducted on June 5,
than a week before the election and 4 days after the union meeting at which
the alleged misrepresentation occurred , the Employer did communicate
with its employees and gave them a check for additional wages . Finally, we
do not believe that "nurses aides , housekeeping employees, and laundry
employees" are so bereft of common judgment as to be unable to evaluate
statements to the effect that by subtracting out-of-state purchases from
gross sales shows that sufficient money was left over to pay a minimal wage
increase In our view , the employees were well able to determine that the
Employer's expenses of operation included more than out-of-state purchas-
es, and they required little "expertise" to realize that at least their own
paychecks were also a cost of that operation.
208 NLRB No. 9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1973, and won by the Petitioner, 26-12, a staff
representative of the Petitioner met with the employ-
ees. He told the assembled employees that the
Employer was making "too much profit," and for
that reason lost a welfare funds law suit in a state
court. He stated that it would have won the law suit
if it had shown a "negative cash flow." The
representative then read from a Board form in which
the Employer stipulated that it had annual gross sales
of $323,902, and purchases from points directly
outside the State of Minnesota in excess of $50,000.
Upon completion of the reading, he remarked that
after subtracting $50,000 of interstate purchases from
gross sales of $323,902, the Employer had over
$200,000 to meet additional expenses, and "must
surely have some money left over to pay at least a
minimal wage increase."
In actuality, as the Acting Regional Director
found, the Employer suffered a loss.
The Acting Regional Director's investigation re-
vealed that the Employer continually communicated
to its employees by letter and memoranda that it was
attempting to secure additional funds from the
Minnesota Department of Public Welfare. He found
this created a "clear implication" that the Employer,
faced with rising costs, had no funds available for
wage increases. He concluded, from this implication,
that the employees were in a position to independ-
ently evaluate the Petitioner's misrepresentation.
Such reasoning is unacceptable to me. The Board has
not adopted, and in my estimation should not adopt,
a penumbra-like approach to solving preelection
2 See The Halsey W Taylor Company, 147 NLRB 16.
3 N L R B v. Trancoa Chemical Corp., 303 F 2d 456 (C A 1, 1962)
4 Schneider Mills, Inc, and Jimmy and Josh, Inc v N L R B, 390 F 2d
375 (C A 4, 1968)
S Gallenkamp Stores Co, Mercury Distributing Company, Acme Quality
Paints, and F & G Merchandising v N LR B, 402 F 2d 525 (C A 9, 1968)
6 N L R B v G K Turner Associates, 457 F.2d 484, 488 (C A 9, 1972)
misrepresentation questions. It is farfetched to
suggest that "nurses aides, housekeeping employees,
and laundry employees" would possess the expertise
to independently evaluate the Petitioner's misstate-
ments.2 To conclude that employees would view the
statements of the Petitioner's representative as mere
innocuous puff is unlikely at best.
The misrepresentation of the Employer's financial
condition, whether or not deliberate, involved an
important matter to the voters.3 The Employer did
not have an opportunity to make an effective reply to
this misrepresentation.4 And, of course, any misre-
presentation concerning wages cannot be considered
trivial.5 In a similar case, G. K. Turner Associates, 183
NLRB 658, a union agent stated erroneously to
the employees that the employer had earned
$500,000 the previous year. The Board found that the
financial condition of the employer was not a major
issue in the election, and that the employer's
president had an opportunity to set the record
straight, and accordingly dismissed the union's
misstatement. However, the Board's finding was
rejected, correctly in my view, by the Ninth Circuit,
which stated:
Misrepresentation about company profitability
can be material, since the extent to which
employees share equitability in the products of
their labor may be of great interest to them.6
Because of these circumstances, I believe that
under the test enunciated in Hollywood Ceramics,7
the election should be set aside and a new election
directed.
7 In Hollywood Ceramics Company, Inc, 140 NLRB 221, 224, the Board
stated "We believe that an election should be set aside only where there has
been a misrepresentation or other similar campaign trickery, which involves
a substantial departure from the truth , at a time which prevents the other
party or parties from making an effective reply, so that the misrepresenta-
tion, whether deliberate or not, may reasonably be expected to have a
significant impact on the election "