Maple View Manor, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1995

319 N.L.R.B. 85 (N.L.R.B. 1995)

85
319 NLRB No. 15
MAPLE VIEW MANOR, INC.
1 District 6, International Union of Industrial, Service, Transport &
Health Employees is the Intervenor.
2 Review was requested of the Regional Director’s finding that the
Employer’s failure to post the Notices of Election for the required
3 full working days prior to 12:01 a.m. of the day of the election
pursuant to Sec. 103.20 of the Board’s Rules and Regulations was
not objectionable.
1 Throughout the preelection stages of this case the Employer and
the Intervenor were in complete agreement that their contract was a
bar to this proceeding.
Maple View Manor, Inc. and New England Health
Care Employees Union, District 1199, AFL–
CIO, Petitioner. Case 34–RC–1330
September 29, l995
ORDER DENYING REVIEW
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Intervenor’s1 request
for review of the Regional Director’s Supplemental
Decision and Certification of Representative (pertinent
portions are attached). The request for review is denied
as it raises no substantial issues warranting review.2
APPENDIX
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
Pursuant to a Decision and Direction of Election issued by
me on May 10, 1995, an election was conducted on June 2,
1995, among the following employees of the Employer:
All full time and regular part time service and mainte-
nance employees employed by the Employer; but ex-
cluding all clerical employees, and guards, professional
employees, and supervisors as defined in the Act.
The tally of ballots prepared after the election and served
upon the parties that day reveals the following results of the
election:
Approximate number of eligible voters 80
Void ballots 0
Votes cast for Petitioner 50
Votes cast for Intervenor 16
Votes cast against participating labor
organization 1
Valid votes counted 67
Challenged ballots 4
Valid votes counted plus challenged
ballots 71
Challenges are not sufficient in number to affect the
results of the election.
A majority of the valid votes counted plus chal-
lenged ballots has been cast for Petitioner.
On June 8, 1995, the Intervenor filed timely objections to
conduct affecting the result of the election, copies of which
were served on the Employer and Petitioner. The Interve-
nor’s objections are based solely on the claim that ‘‘The Em-
ployer did not post the official notice of election for the re-
quired three (3) days pursuant to Section 103.20 of the
Board’s rules and regulations.’’
Pursuant to Section 102.69 of the Board’s Rules and Reg-
ulations, Series 8, as amended, I have caused to be con-
ducted an investigation of the Intervenor’s objection, and, for
the reasons noted below, I issue this Supplemental Decision
and Certification of Representative.
By letter dated May 19, 1995, I notified the parties that
pursuant to the aforementioned Decision and Direction of
Election, an election would be conducted in this matter on
Friday, June 2, 1995, from 6 to 8 a.m. and from 2 to 4 p.m.
The letter, which was accompanied by Notices of Election,
stated in relevant part:
Pursuant to Section 103.20 of the Board’s Rules and
Regulations, the Employer is required to post these No-
tices of Election at conspicuous places at least three (3)
full working days prior to 12:01 a.m. of the day of the
election. As noted in prior correspondence, the term
‘‘working day’’ means an entire 24 hour period exclud-
ing Saturdays, Sundays, and holidays. It should also be
noted that the Employer is deemed to have received
copies of these Notices of Election for posting unless it
notified this office at least five (5) working days prior
to the commencement of the election that it has not re-
ceived said copies. [Emphasis added.]
In order to comply with Section 103.20 the Notices in
question were required to be posted by 12:01 a.m. on Tues-
day, May 30, 1995. At no time has the Employer notified
this office or otherwise claimed that it did not receive the
Notices in time to post them as required.
In support of its objection, the Intervenor submitted an af-
fidavit from its vice president stating that, at approximately
10 a.m. on Tuesday, May 30, 1995, he spoke with the Em-
ployer’s administrator who informed him that the Notices
had been posted ‘‘just minutes before.’’ Similiarly, the Em-
ployer’s counsel has represented to the Region that the No-
tices of Election were posted at 10 a.m. on Tuesday, May
30, 1995. The Employer has offered no explanation as to
why it did not comply with Section 103.20 of the Board’s
Rules and Regulations.
Assuming arguendo that the Notices were not posted for
the requisite period of time, a literal reading of Section
103.20 would require that the instant election be set aside.
See Club Demonstration Services, 317 NLRB 349 (1995).
However, to apply the Rule in such a manner in cases such
as this where more than one union is involved ‘‘invites collu-
sion’’ because it suggests to any employer who favors one
of the competing unions1 that willful objectionable conduct
will result in the favored minority union being able to suc-
cessfully file objections and secure a second election.
Packerland Packing Co., 185 NLRB 653, 654 (1970); see
also Axelson Inc., 263 NLRB 77 (1982), 251 NLRB 282
(1980); and Nestle Co., 248 NLRB 732, 741 (1980), and
cases cited therein. Indeed, where, as here, the Employer was
apparently responsible for the nonposting, and thus clearly
estopped by Rule 103.20(c) from objecting thereto, such a
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86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pernicious result would be even more likely to occur. In
these circumstances therefore, to set this election aside based
on the Employer’s unexplained failure to post the election
notices for the proscribed period would permit it to benefit
from its own improper conduct, encourage collusion, and
serve no substantial interest of the employees.
Accordingly, based upon the above, I find no merit to In-
tervenor’s objection, I overrule it in its entirety, and l issue
the following
CERTIFICATION OF REPRESENTATIVE
Pursuant to the authority vested in me by the National
Labor Relations Board, It is certified that a majority of the
valid ballots have been cast for New England Health Care
Employees Union, District 1199, AFL–CIO, and that it is the
exclusive collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full time and regular part time service and mainte-
nance employees employed by the Employer; but ex-
cluding all clerical employees, and guards, professional
employees, and supervisors as defined in the Act.
Right to Request Review
Under the provisions of Sections 102.69 and 102.67 of the
Board’s Rules and Regulations, a request for review of this
Supplemental Decision may be filed with the Board in Wash-
ington, D.C. The request for review must be received by the
Board in Washington by July 5, 1995.
Under the provisions of Section 102.69(g) of the Board’s
Rules, documentary evidence, including affidavits, which a
party has timely submitted to the Regional Director in sup-
port of its objections or challenges and which are not in-
cluded in the Supplemental Decision are not part of the
record before the Board unless appended to the request for
review or opposition thereto which the party files with the
Board. Failure to append to the submission to the Board cop-
ies of evidence timely submitted to the Regional Director and
not included in the Supplemental Decision shall preclude a
party from relying upon that evidence in any subsequent re-
lated unfair labor practice proceeding.
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