Lutheran Retirement Village

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 103 (N.L.R.B. 1994)

103
315 NLRB No. 15
LUTHERAN RETIREMENT VILLAGE
1 In an unpublished decision dated November 18, 1993, the Board
considered the objections to an election held on April 23, 1993, and
the hearing officer’s report recommending disposition of them. The
election was held pursuant to a Stipulated Election Agreement. The
tally of ballots shows 61 for and 78 against the Intervenor, with 2
challenged ballots, an insufficient number to affect the results. The
Board adopted the hearing officer’s recommendation to overrule the
Intervenor’s Objections 3, 7, 8, and 9. It then remanded to the hear-
ing officer for further factual findings, including credibility resolu-
tions, and reconsideration of Intervenor’s Objection 12.
Lutheran Home of Northwest Indiana, Inc., d/b/a
Lutheran Retirement Village and Scott Brown,
Petitioner and United Steelworkers of America,
AFL–CIO, CLC, Intervenor. Case 13–RD–2015
September 30, 1994
SUPPLEMENTAL DECISION AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
The question presented to the National Labor Rela-
tions Board in this decertification election case is
whether the hearing officer correctly found that the
Employer did not interfere with a decertification peti-
tion when its chairman made comments to employees
about pension benefits during a preelection campaign
speech.1 The Board has reviewed the record in light of
the exceptions and briefs and has determined, contrary
to the hearing officer’s findings and recommendations,
to sustain the Intervenor’s objection to the statements
at issue and to direct a second election.
Two days prior to the April 23, 1993 election, the
Employer held a series of meetings with employees.
This proceeding focuses on statements made by Robert
Anderson, the Employer’s chairman of the board, to
the group of 15–20 employees who attended the sec-
ond meeting held that day. During introductory re-
marks, Anderson asked employees for a second
chance. He said that the board of directors had re-
ceived a wake-up call from the decertification petition,
and he invited employees to help in decertifying the
Union. Anderson then commented about some of the
issues he had heard during the election campaign. Ac-
cording to the credited testimony of three employee
witnesses, Anderson stated, inter alia, that the Em-
ployer was definitely looking into getting pensions for
the employees. They had no pension benefits at the
time.
A question and answer period followed Anderson’s
remarks. Employee Cathy Surowiec asked Anderson
how he could have made such a statement about pen-
sions when a head nurse had recently told her that,
with or without a union, the Employer could not afford
a pension. Anderson repeated that the Employer was
definitely looking into getting employees a pension. In
response to this and other employee questions, Ander-
son also said that he could not make any promises be-
cause that would be illegal.
There is no evidence that employees were pre-
viously aware that the Employer’s board was definitely
considering a pension benefit. Moreover, there is scant
evidence of such consideration at the time of the elec-
tion. The Intervenor’s campaign literature claimed that
it had proposed, and the Employer had rejected, pen-
sion benefits in the parties’ recent contract negotiations
(fiMDBUfl*ERR17*fiMDNMflwhich apparently failed to produce a fina
Wayne Hahn, the Employer’s administrator, testified
that, ‘‘long before the election bringing the Steel-
workers into the Home,’’ an employee advisory com-
mittee had reviewed several pension plans and had pre-
sented them to the board of directors for review. An-
derson could not recall the last time that the board had
discussed pensions. He estimated that the subject arose
twice a year. According to Anderson, the board briefly
discussed pensions each time and had never ruled them
out.
The hearing officer found that Anderson had truth-
fully stated that the Employer’s board of directors had
in the past occasionally considered or discussed a pen-
sion benefit. Acknowledging that Anderson’s use of
the word ‘‘definitely’’ may have unduly emphasized
the extent of board consideration, the hearing officer
found that ‘‘no specific pension improvement was
mentioned, even as a distinct probability.’’ In sum, the
hearing officer found Anderson’s remarks to be com-
parable to those which the Board had previously found
to be unobjectionable because they were ‘‘recognizable
by employees as paternalistic campaign propaganda to
the effect that the Employer would take better care of
them in the future generally.’’ Coverall Rental Service,
205 NLRB 880, 881 (fiMDBUfl*ERR17*fiMDNMfl1973)fiMDBUfl*ER
fore recommended that the Intervenor’s Objection 12
be overruled. We disagree.
A pension plan represented a specific and substantial
new benefit to unit employees. The Intervenor had
been unsuccessful in securing such a benefit for them
in collective bargaining. A week before the employee
meeting, a head nurse had specifically told unit em-
ployee Surowiec that there would be no pension bene-
fit, with or without a union.
Anderson’s remarks must be considered against this
background and in the context of his admitted purpose
of encouraging employees at the April 21 meetings to
decertify the Intervenor. The Employer’s chairman sua
sponte volunteered the unexpected information that the
Employer was definitely looking into getting employ-
ees a pension plan. There is no evidence that Ander-
son’s comments signaled a change in the Employer’s
bargaining position, or that employees would reason-
ably interpret them as such. On the contrary, employ-
ees would reasonably believe that Anderson was im-
plicitly providing them with a concrete example of a
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Anderson’s remarks about pensions benefits are significantly dif-
ferent from those statements found permissible in Coverall Rental
Service, supra, and relied upon by the hearing officer. In that case,
the employer made generalized references to a seminar discussion of
improvements which could be made to profit-sharing plans. The unit
employees already had a profit-sharing plan, and the employer did
not mention any specific improvements to that plan as a distinct
probability. In the present case, Anderson stressed the Employer’s
definite consideration of a specific, new, and substantial benefit
which unit employees had been unable to obtain through their bar-
gaining representative.
benefit which they could obtain only by supporting the
decertification effort. This implicit promise of a spe-
cific and substantial benefit 2 days before the election
necessarily interfered with employees’ free choice in
that election.2
Anderson’s rote disclaimers of the ability to make
promises did not negate the objectionable effects of his
remarks about pension benefits. ‘‘It is immaterial that
an employer professes that he cannot make any prom-
ises, if in fact he expressly or impliedly indicates that
specific benefits will be granted.’’ Michigan Products,
236 NLRB 1143, 1146 (fiMDBUfl*ERR17*fiMDNMfl1978)fiMDBUfl
forth above, we conclude that Anderson did implicitly
promise pension benefits to employees in an effort to
persuade them to vote against continued representation
by the Intervenor. Accordingly, we shall sustain the In-
tervenor’s Objection 12, set aside the election held on
April 23, 1993, and direct a second election.
[Direction of Second Election omitted from publica-
tion.]