Leisure Lodge

National Labor Relations Board - Board Decisions

Apr 17, 1986

279 N.L.R.B. 327 (N.L.R.B. 1986)

LEISURE LODGE
Beverly Enterprises d/b/a Leisure Lodge and
United Food and Commercial Workers Union
Local 1583 , Petitioner. Case 26-RC-6692
17 April 1986
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 12 September 1984 and the hearing
officer's report recommending disposition of them.
The election was conducted pursuant to a Stipulat-
ed Election Agreement. The tally of ballots shows
15 for and 20 against the Petition, with 2 chal-
lenged ballots, an insufficient number to affect the
results.
The Board has reviewed the record in light of
the exceptions and briefs, has adopted the hearing
officer's findings and recommendations,' and finds
that the election must be set aside and a new elec-
tion held.
In agreement with the hearing officer, we find
that the Employer's announcement of a wage in-
crease was objectionable. The wage increase was
announced a week before the election at an antiun-
ion meeting. Further, contrary to our dissenting
colleague, we are not persuaded by the Employer's
proferred justifications for the timing of that an-
nouncement. When the employees were told some
5-6 months previously that a wage increase might
be granted about that time, they were told that any
such wage increase would depend on an increase in
the state Medicaid reimbursement rate. The wage
increase was precipitously announced, however, a
full week before the Employer received official no-
tification that such a Medicaid increase was forth-
coming, almost a month before it became effective,
and almost 2 months before the Employer actually
began receiving it. While the Employer claims that
it had received prior unofficial notification that a
Medicaid increase had received the Governor's ap-
proval, it also claims that it subsequently did a 2-
week-long cost analysis before announcing the
wage increase. Yet the Employer presented no
documentary evidence of such an analysis. We con-
clude that the Employer rushed the announcement
of the wage increase forward in time to influence
the election results.
Unlike our dissenting colleague, we also are un-
persuaded that the wage increase was unobjection-
i In the absence of exceptions thereto , we adopt pro forma the heating
officer's recommendations that the Petitioner 's Objections 1, 4, 5, 6, 8,
and 10 be overruled
327
able simply because it was announced statewide
and not just in the voting unit. The case which our
colleague cites for this proposition, Stanley Smith
Security, 270 NLRB 225 (1984), is distinguishable.
In that case, there was no evidence that the em-
ployer's regional manager, who made the decision
to grant the preelection benefit, was aware of the
pending election in the voting unit. Additionally,
because of blocking charges in that case, the date
of the election was uncertain at the time of the de-
cision. Here, in contrast, the Employer's vice presi-
dent of human resources Mike Hayden testified
that he and other members of the executive staff
"made a very conscious decision" to implement the
wage increase at the Camden facility notwithstand-
ing the pending election. Further, there were no
blocking charges here or other similar circum-
stances then causing uncertainty about the election
date. Cf. Northern Telecom, Inc., 233 NLRB 1104
(1977) (no knowledge that a rerun election was
going to be called).
[Direction of Second Election omitted from pub-
lication.]
CHAIRMAN DOTSON, dissenting.
Contrary to my colleagues, I would reverse the
hearing officer, overrule the Petitioner's Objection,
and certify the results of the election.
The Employer operates 47 nursing homes in the
State of Arkansas, including the Camden facility in-
volved in this proceeding. As of the date of the
election the Petitioner represented employees at
seven of these facilities. The remaining 40 facilities
were nonunion.
In April 1984, prior to the election campaign,'
the Employer announced that it was "expand[ing]"
the wage scale at its 40 nonunion facilities to pro-
vide, for the first time, a 5- and 10-cent-per-hour
wage increase to employees with 4 and 5 or more
years of service, respectively. At the Camden facil-
ity these increases were announced both in posted
notices and orally by Administrator Bettye Wallace
at one or more staff meetings .2 Wallace also ad-
vised the employees at that time that the Employer
intended to implement another wage increase
sometime in the fall of that year.3 Wallace told the
' The election petition was filed on 23 July 1984
2 That Wallace orally announced the April wage increase is established
both by Wallace's testimony and by the testimony of employee Carolyn
Gaskin, a witness for the Petitioner
2 The record is unclear about precisely when the employees were told
that they could expect another increase Employee Sallie Elliot, a witness
for the Petitioner, testified that Administrator Wallace said "that the
Company was establishing something where we would get a raise like-I
don't remember the months It would be April, September-something
like that January-I don't know the month exactly " Employee Carolyn
Gaskin, also a witness for the Petitioner, testified that Wallace said that
Continued
279 NLRB No. 49
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees that this would depend upon whether
the State increased the reimbursement rate for
Medicaid.
At a subsequent 15 August 1984 meeting of the
Arkansas Nursing Home Association (ANHA), the
Employer learned that the Governor had agreed to
a 4-percent increase in the Medicaid reimbursement
rate effective 1 October 1984.4 Based on this infor-
mation, approximately 2 weeks later the Employer
decided to implement, effective 3 September 1984,
another 5-cent-per-hour wage increase at its non-
union facilities for employees with 4 or more years
of service. A memorandum announcing this in-
crease was sent to each of the 40 nonunion facili-
ties, including the Camden facility, on 5 September
1984.8 Vice President Hayden testified that the
reason it was decided to implement and announce
the increase at that time, rather than after the Med-
icaid increase became effective 1 October, was that
"we had told the employees we were going to look
at it [a wage increase] as soon as we could" and
"we don't like to be after the fact always."
Administrator Wallace testified that she first
heard about the wage increase on the morning of 5
September. At that time she discussed the possible
ramifications of announcing the increase during the
pendency of the election with Greg Robertson, the
Employer's manager of organized activity. Wallace
testified that she took the position that the increase
should be announced that day because it was being
announced at all of the other affected facilities that
day. It was decided that Wallace would announce
the increase at a meeting with employees presche-
duled for that afternoon.
The testimony was conflicting even among the
Petitioner's own witnesses as to precisely what
Wallace said to the employees at the afternoon
meeting.6 It is undisputed, however, that Wallace
the Company was going to try to give them a second increase "in an-
other six months " Wallace herself testified that "`in the fall' was the way
it was said."
4 Mike Hayden , the Employer 's vice president of human resources, tes-
tified that the president of the ANHA board announced the forthcoming
4-percent Medicaid increase at the 15 August meeting The hearing offi-
cer did not discredit Hayden's testimony, nor do I find reason in the
record to do so The hearing officer found , and the record shows, that
the Employer also received written confirmation of the 4-percent in-
crease from the ANHA executive director about 7 September 1984 and
that the Arkansas Department of Human Services issued official notifica-
tion of the 4-percent increase approximately I week later on 13 Septem-
ber 1984
3 The memorandum was addressed to "All Arkansas Nurses' Aides and
Housekeeping , Dietary, Laundry and Maintenance Employees " (Empha-
sis added)
6 As part of its objection, the Petitioner charged that Wallace's alleged
comments at the 5 September meeting , as well as Vice President Hay-
den's comments at later preelection meetings , constituted independent
grounds for setting aside the election The hearing officer overruled this
part of the Petitioner 's objection
announced the wage increase at the outset of the
meeting, after which Jeanette Pace, the food serv-
ice supervisor, showed the employees a film enti-
tled "Working Without A Union." Subsequently,
Wallace also posted the Employer's 5 September
memorandum announcing the increase on the bulle-
tin board.7
On the foregoing facts, the hearing officer con-
cluded that the Employer timed its announcement
and implementation of the September wage in-
crease for the objectionable purpose of influencing
the outcome of the election. The hearing officer
specifically cited the Employer's failure to present
any documentary evidence that it was contemplat-
ing a raise at such an early date or of a past prac-
tice of raises in September or the fall. Further, the
hearing office found Vice President Hayden's ex-
planation for the timing of the raise to be "lacking
in logic and unconvincing."
I disagree. The Board has generally declined to
find an objectionable motive upon evidence that
the preelection benefit increase (1) was granted
pursuant to a past practice, (2) was granted pursu-
ant to a decision reached before the election peti-
tion was filed, or (3) was implemented corpor-
atewide in a normal business fashion.8 Here, al-
though the hearing officer correctly found no evi-
dence of the first,9 the Petitioner's own witnesses
admitted to the second and uncontroverted docu-
mentary and other evidence establishes the third.
Thus, as outlined above, the Petitioner's witnesses,
employees Elliot and Gaskin, both confirmed that
Wallace had told them in April, before the election
petition was filed, that a second wage increase
would be granted in the fall. Wallace also told
them that this increase would be contingent upon
an increase in the Medicaid reimbursement rate
and, in fact, the Employer was informed on 15
August, over 2 weeks before it implemented the
wage increase, that the 4-percent Medicaid increase
would be forthcoming. Finally, it is undisputed that
the wage increase was implemented and announced
statewide, at all 40 of the Employer's nonunion fa-
7 Although the record does not reveal the exact date Wallace posted
the memorandum, employee Elliot testified that she saw it on the bulletin
board on the day of the election
8 See, e g, Stanley Smith Security, 270 NLRB 225 (1984) As I stated in
my separate opinion in Adams Super Market Corp, 274 NLRB 1334
(1985), in my view such factors are not even relevant until the objecting
party has established a prima facie case that the Employer's conduct was
intended to influence the election However, in this case I find that the
objecting party established a prima facie case upon the evidence that the
Employer first announced the September wage increase at an antiunion
meeting held the week before the election Cf id
9 Significantly, however, the Employer never even contended that it
had a past practice of similar September or fall wage increases Indeed, it
admitted that it had instituted wage increases for employees with 4 or
more years of service for the first time in April of that year Obviously,
therefore, no past practice could yet have been documented
LEISURE LODGE
cilities, on 5 September. In light of these circum-
stances, contrary to the hearing officer I perceive
no reason to discredit Vice President Hayden's ex-
planation concerning the timing of the wage in-
crease.10
Nor am I persuaded by the Petitioner's conten-
tion that the manner in which the Employer an-
nounced the September wage increase betrays an
objectionable motive. Although the Employer did
not establish a past practice of orally announcing
wage increases, it presented documentary evidence
that it told its administrators to begin doing so in
April, prior to the election campaign, when it an-
nounced its new "expanded" wage scale. Indeed, as
10 In disagreeing with the hearing officer in this regard, I note that his
refusal to credit Hayden's explanation was not based on Hayden's de-
meanor, but on what he perceived as the explanation's inherent implausi-
bility Accordingly, the hearing officer's credibility determinations are
not necessarily entitled to deference See, e g, Red's Express, 268 NLRB
1154 (1984)
329
noted above, the Petitioner's own witnesses admit-
ted that Wallace orally announced the April in-
crease. Under all the circumstances, I also do not
find it determinative that the September announce-
ment was made at the outset of a meeting where an
antiunion film was shown. It is uncontroverted that
the meeting had been scheduled prior to 5 Septem-
ber when according to Wallace she first learned of
the wage increase, and the Petitioner does not
allege that the film itself constituted unprotected
speech or was otherwise objectionable. )1
Accordingly, for all the foregoing reasons, I con-
clude that the September wage increase was not
designed to influence the outcome of the election. I
would therefore overrule the Petitioner's objection
and certify the results of the election.
11 See J P Stevens & Co, 183 NLRB 25 (1970), enfd 461 F 2d 490
(4th Cir 1972)