Midway Hospital Medical Center

National Labor Relations Board - Board Decisions

Apr 28, 2000

330 N.L.R.B. 1420 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1420
Midway Hospital Medical Center, Inc. d/b/a Midway
Hospital Medical Center and Saskia Lodder, Pe-
titioner and Health Care Employees Union, Lo-
cal 399, Service Employees International Union,
AFL–CIO. Case 31–RD–1399
April 28, 2000
DECISION AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held June 2, 3, and 4, 1999, and the hearing officer’s
report recommending disposition of them. The election
was conducted pursuant to a Decision and Direction of
Election. The revised tally of ballots shows 152 for and
138 against the Union, with 11 challenged ballots, and 2
void ballots. The challenged ballots are insufficient in
number to affect the results of the election.
The Board has reviewed the record in light of the ex-
ceptions and brief, has adopted the hearing officer’s find-
ings and recommendations, and finds that a certification
of representative should be issued.1
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Health Care Employees Union, Local 399,
Service Employees International Union, AFL–CIO, and
that it is the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:

All service, maintenance, technical, and business office
and hospital clerical employees including licensed vo-
cational nurses, nursing attendants, aides, secretaries,
technicians, drivers, orderlies, receptionists, counselors,
food service employees, housekeeping employees and
all other non-professional employees, all professional
employees, including registered nurses, medical tech-
nologists, cytotechnologists, radiology technologists,
nuclear medicine technologists, pharmacists, registered
and registered-eligible respiratory therapists, certified
respiratory technologists, laser lab technologists, regis-
tered physical therapists, ultrasound technologists,
CAT/SCAN technologists, dieticians, and accountants
employed by the Employer at its Los Angeles, Califor-
nia facility, excluding confidential employees, casual
employees, guards and supervisors as defined in the
Act.

1 For the reasons set forth in the portion of the hearing officer’s re-
port as an appendix, we find that the entirety of outbursts against the
Employer by employee Joan Boucher, a union election observer, did
not reasonably tend to interfere with employees’ free choice in the
election and does not require setting aside the results of that election.
Furthermore, we agree with the hearing officer that Boucher’s loud
declamations for a few minutes while in the polling area did not violate
the no-electioneering rule set forth in Milchem, Inc., 170 NLRB 362
(1968). As our dissenting colleague suggests, unanswered messages by
parties to the election may be construed as objectionable conversations
under Milchem when those messages are directed at employees waiting
to vote. See Fieldcrest Cannon, Inc., 318 NLRB 470, 566–567 (1995).
However, Boucher’s polling area complaints were directed to Union
Representative Dana Hahn, management officials, and the Board agent
in the polling area. Although those complaints were loud enough to be
overheard by employees who were outside that area and waiting to
vote, we disagree with the dissenting opinion that Boucher could rea-
sonably be viewed as attempting to communicate with them. We,
therefore, find no Milchem violation.

MEMBER BRAME, dissenting.
Contrary to the majority, I would sustain the Em-
ployer’s objections and set aside this election. As dis-
cussed more fully in the hearing officer’s report, em-
ployee Joan Boucher, a paid union organizer and union
observer in the election, engaged in a prolonged, 30-
minute tirade against the Employer after being directed
to leave the Employer’s cafeteria during the period be-
tween the first and second sessions of balloting on June
3, 1999.1 Boucher’s tirade began in the cafeteria and
continued as she walked toward the polling area. Upon
arriving at the polling area, Boucher persisted in yelling
in a loud voice about her treatment by the Employer
while standing in close proximity to the polling area and
within easy earshot of more than 20 employees who were
waiting in line to vote when the polls opened. Boucher
disregarded three separate directions by the Board agent
in charge of the polling area to cease her disruption. At
least in part as a consequence of Boucher’s behavior, the
polls opened 10 minutes late for the second session on
that day.
I would find that Boucher was an agent of the Peti-
tioner and that her conduct interfered with employee free
choice in the election. First, the disruptive nature of
Boucher’s behavior alone, in the face of three clear direc-
tives to stop by the Board agent, which was witnessed by
more than 20 employees and delayed the opening of the
polls, raises serious questions about the fairness of this
election.2 In addition, Boucher’s antiemployer diatribe
constituted impermissible electioneering in violation of
the rule set forth in Milchem, Inc., 170 NLRB 362
(1968).
The hearing officer found that Boucher did not violate
the Milchem rule because she did not “converse” with
employees and no “exchange” of views took place. The
hearing officer’s apparent belief that the Milchem rule
only applies to bilateral conversations and exchanges of
view is erroneous. See Fieldcrest Cannon, Inc., 318
NLRB 470, 566–567 (1995) (the fact that a supervisory
employee showed an antiunion poster to employees wait-
1 Boucher falsely claimed that the Board agent conducting the elec-
tion had given her permission to be in the cafeteria.
2 See, e.g., North of Market Senior Services v. NLRB, 204 F.3d 1163
(D.C. Cir. 2000) (union agents’ improper invasion of employer’s facil-
ity on day of election interferes with election by creating impression
that employer was helpless to control its own facility and stand up to
the union).
330 NLRB No. 199
MIDWAY HOSPITAL MEDICAL CENTER 1421
ing in line to vote “establishes Respondent’s violation of
the Milchem rule—[the supervisor] effectively communi-
cated with [the employees] while they waited in line by
standing there and letting them read the poster”), enfd. in
pertinent part 97 F.3d 65 (4th Cir. 1996). Accordingly, I
would not adopt this erroneous finding.
The majority appears to recognize that the Milchem
rule is not limited to bilateral conversations but finds, in
the circumstances of this case, that Boucher’s diatribe
was directed at the Board agent and representatives of the
parties—in short everyone present except the voters. In
my view, this finding is contrary to the clear weight of
the evidence. As the hearing officer acknowledged, the
issue of off-duty employee access to the cafeteria was a
major issue in the election. In these circumstances, the
timing, volume, and content of Boucher’s deliberate false
statements that the Board agent gave her permission to
be in the cafeteria, evidence an intention of reminding
voters of the issue and communicating a disparaging
view of the Employer’s enforcement of its rules. I would
find that her tirade in the presence of employees waiting
to vote was not an isolated, chance, or spontaneous out-
burst but a deliberate effort to influence their votes in
violation of the Board’s Milchem rule. Under all of the
foregoing circumstances, and considering the close mar-
gin of the election results, I would set aside this election.
APPENDIX
HEARING OFFICER’S REPORT AND
RECOMMENDATIONS ON OBJECTIONS
In support of the objections, the Employer called Anthony
Stewart, the Employer’s director of security; Gregg Yost, the
Employer’s director of human resources; Saskia Lodder, Peti-
tioner; and Richard Kopenhefer, employer counsel, all of who
were credible witnesses who presented uncontradicted testi-
mony. The Union and the Petitioner presented no witnesses,
and contented themselves with the evidence presented by the
Employer.
The evidence presented established that on June 3, 1999, the
first day of the 2-day manual election conducted by this Region
at the Employer’s premises, at approximately 1:30 to 1:40 p.m.,
prior to the scheduled 2 p.m. start of the second session; Joan
Boucher, an employee of the Employer and also the union ob-
server for the NLRB conducted election, was discovered in the
Employer’s cafeteria, an area which had been designated as an
area off limits union representatives/agents unless prior permis-
sion had been received from the Employer. A stipulation was
received during the course of the hearing, that Boucher was a
paid union organizer for the Union during the period of time
that Boucher was not on duty at he Employer as an employee of
the Employer; which would have included the time in question,
when Boucher was off duty and acting as the Union’s observer.
Limited testimony was presented that the presence of union
supporters, specifically Boucher, in the Employer’s cafeteria
was a major issue between the parties during the period leading
up to the date of the election, which had culminated in the filing
of unfair labor practice charges by the Union over the issue. A
copy of such charge was made part of the record as Exhibit O
to the Regional Director’s Supplemental Decision, Order Di-
recting Hearing on Objections and Challenges, Order Delaying
Hearing on Challenges, and Notice of Hearing on Objections,
dated September 23, 1999, which was the Board’s Exhibit l(a)
which was introduced and received into evidence without ob-
jection by any of the parties.
Upon Boucher’s discovery in the Employer’s cafeteria,
Stewart was notified of Boucher’s presence by one of his secu-
rity officers, and Steward instructed the officer to inform
Boucher she was not allowed in the cafeteria, and to leave the
area. Stewart immediately proceeded to the cafeteria, and upon
his arrival found Boucher upset and yelling in a loud voice at
the officer, accusing the officer of harassing Boucher. Upon
Stewart’s arrival, Boucher started yelling at Stewart, accusing
Stewart of harassment, and alleging that Boucher had the per-
mission of the Board agent conducting the election, to be pre-
sent in the cafeteria.
As soon as Stewart was advised by Boucher, that Boucher
had permission from the Board agent to be present in the cafe-
teria, Stewart left the cafeteria to go to the polling area, to con-
firm with the Board agent, that Boucher indeed had such per-
mission. The polling area was located in an area of the hospital
away from the cafeteria, which necessitated travel down several
corridors to reach the polling area.
Once Stewart reached the polling area, he informed Yost,
who was present in the area, of what had transpired in the cafe-
teria with Boucher, and the fact that Boucher had claimed that
she had permission from the Board agent to be present in the
cafeteria. Yost, in turn, called over the Board agent and at-
tempted to confirm that the Board agent, in fact, had given such
permission to Boucher. The Board agent informed Stewart and
Yost that he had not given such permission to Boucher to go to
the Employer’s cafeteria. Stewart immediately left the polling
area to go back to the cafeteria to escort Boucher back to the
polling area.
As Stewart went toward the cafeteria, he met Boucher, who
had left the cafeteria, in a hallway coming toward the polling
area. Boucher immediately starting yelling at Stewart, in a loud
voice, about Stewart’s harassment of her, and of being fol-
lowed. Stewart followed Boucher through the hospital corridors
to the polling area, a distance in excess of 200 feet which was
covered in less then 2 minutes. During this entire period
Boucher continued to “yell” her views concerning the treatment
she was experiencing at the hands of the Employer; i.e., har-
assment, being followed, not being left alone, not being able to
get a drink. During the period of time that Boucher and Stewart
were walking toward the polling area, Boucher was not direct-
ing her complaints to any specific individual, including Stew-
art, but rather was directing them to the air in general.
Upon arrival just inside the room where the polling area was
located, Boucher persisted in “yelling” in a loud voice about the
treatment she was receiving, to Dana Hahn, a stipulated union
representative, specifically about being harassed and being
followed around. Boucher’s complaints were made in close
proximity to the doorway to the hallway, where upward of 20
employees were waiting for the second polling session, sched-
uled for 2 p.m., to open so that they could vote.
During the time that Boucher was in the polling area voicing
her complaints about harassment and being followed, the Board
agent cautioned Boucher three times within a period of a min-
ute and one half to calm down, and on the third occasion telling
Boucher to take the problem outside the polling area. At this
time, it was a few minutes past 2 p.m., the scheduled starting
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1422
time for the second polling session. Approximately 2 to 3 min-
utes prior to the actual start of the polling session, approxi-
mately 2:10 p.m., Boucher had calmed down, and there was no
evidence presented that Boucher voiced her concerns about the
Employer’s treatment of her during the course of that or any of
the subsequent polling sessions.
Employer counsel, in his brief, presents a three-fold argu-
ment as to how Boucher’s conduct was sufficiently objection-
able to warrant overturning the results of the instant election.
The first argument advanced by employer counsel is a general
argument that the proper test to be applied to Boucher’s con-
duct, is whether it “reasonably tended to interfere with the em-
ployee’s free and uncoerced choice in the election.” Baja’s
Place, 268 NLRB 868 (1984). Counsel further cites Avis Rent-
A-Car System, 280 NLRB 580 (1986), where the Board set
forth the following factors for evaluating whether employees
could freely and fairly exercise their choice in an election. The
factors were as follows:

(1) the number of the incidents of misconduct;
(2) the severity of the incidents and whether they were
likely to cause fear among the employees in the bargaining
unit;
(3) the number of employees in the bargaining unit
subjected to the misconduct;
(4) the proximity of the misconduct to the election
date;
(5) the degree of persistence of the misconduct in the
minds of the bargaining unit employees;
(6) the extent of dissemination of the misconduct
among the bargaining unit employees;
(7) the effect, if any, of misconduct by the opposing
party in canceling out the effect of the original miscon-
duct;
(8) the closeness of the final vote; and
(9) the degree to which the misconduct can be attrib-
uted to the union.

After evaluating all these factors, I conclude that the conduct
complained of, by Boucher, did not reasonably tend to interfere
with the employee’s free and uncoerced choice in the election,
for the following reasons.
The conduct complained of consisted of only one incident
which occurred within an approximately 30-minute period prior
to and/or during the first 10 minutes of the scheduled second
voting session, on the first day of a scheduled 2-day voting
period. The conduct complained of was loud “yelling” remarks
directed by Boucher, while in the Employer’s cafeteria, to a
security officer, a nonunit employee; and to the Employer’s
director of security, also a nonunit employee; that security was
harassing Boucher. These remarks were allegedly overheard by
an unknown number of unit employees present in the cafeteria
Boucher then continued to make loud “yelling” undirected
remarks during the approximately 2 to 3 minutes that were
spent traveling the distance from the cafeteria to the polling
area, during which period of time, an unknown number of unit
employees were alleged to have overheard Boucher’s utter-
ances. Once Boucher reached and entered the polling area,
Boucher continued her outburst and 10–15 eligible voters wait-
ing in line to vote, allegedly heard Boucher’s loud and heated
remarks.
However, there was no evidence presented that Boucher ut-
tered any threats directed toward the Employer or other unit
employees, or directed any calls to action toward unit employ-
ees. Rather, the statements made were those of any apparently
disgruntled, upset, and/or angry prounion employee concerning
perceived disparate treatment directed toward herself, and her-
self only; not to the unit employees as a whole. As such, I find
that Boucher’s statements, yelled or screamed, failed to cause
sufficient fear or coercion among bargaining unit employees
that would rise to the level that would cause interference with
the employees free and uncoerced choice in the election. I note
the factors listed by the Board in Avis Rent-A-Car System, su-
pra, such as proximity of the misconduct to the election date,
the closeness of the final vote, and the degree to which the mis-
conduct could be attributed to the Union would tend to be sup-
ported by the evidence in the instant case, whereas they are
balanced by the lack of evidence supporting such factors as the
decree of persistence of the misconduct in the minds of the
bargaining unit employees, the extent of dissemination of the
misconduct among the bargaining unit employees, and the ef-
fect, if any, of misconduct by the opposing party in canceling
out the effect of the original misconduct, and as such these
opposing factors cancel themselves out. I therefore find that
Boucher’s conduct did not destroy and/or interfere with the
laboratory conditions of the election, which would warrant
setting aside the instant election.
Employer counsel’s second argument contends that
Boucher’s conduct consisted of impermissible electioneering
which violated the rule set , forth in Milchem, Inc., 170 NLRB
362 (1968), which states, “[S]ustained conversation with pro-
spective voters waiting to cast their ballots, regardless of the
content of the remarks exchanged, constitutes conduct which,
in itself, necessitates a second election.”
Initially, I note that there was no evidence presented that
Boucher, did in fact, engage in conversation with any prospec-
tive voters waiting to cast their ballots, and this is acknowl-
edged by the employer counsel. Counsel argues, rather, that
Boucher engaged in a “long and sustained diatribe” against the
Employer which was voiced with sufficient volume to have
been overheard by the eligible voters outside the polling area,
thus obviating the need for direct (emphasis added) conversa-
tion with the prospective voters.
Counsel further argues that it is not necessary for a party to
directly engage in “conversation” with eligible voters to violate
the Board’s Milchem rule, citing Fieldcrest Cannon, Inc., 318
NLRB 470 (1995). Fieldcrest, supra, involved a situation where
supervisors showed placards listing strikes by the union to vot-
ers while the voters were in line to vote, but did not, in fact,
speak to the employees. This conduct was found violative of
the Milchem rule, as a continuation of unlawful conduct, i.e.,
conversations with employees; that had occurred prior to the
start of the election.
In the instant case, there is no evidence or contention that
“conversation,” that is, “oral exchange of sentiments, observa-
tions, opinions, or ideas,” Webster’s, New Collegiate Diction-
ary, 1977, with emphasis or “exchange” occurred, and as such I
conclude that Boucher’s conduct did not violate the Board’s
Milchem role, and therefore the election should not be aside on
this basis.
Employer counsel’s third argument contends that Boucher’s
conduct violated the rule set forth in Peerless Plywood Co., 107
NLRB 427 (1953), where the Board stated, “This rule shall be
that Employers and Unions alike will be prohibited from mak-
ing election speeches on company time to massed assemblies of
MIDWAY HOSPITAL MEDICAL CENTER 1423
employees within 24 hours before the scheduled time for con-
ducting an election. Violation of this rule will cause the election
to be set aside whenever valid objections are filed.” Counsel
argues that Boucher’s loud sustained complaints uttered in the
presence of eligible voters constituted “campaign speech” en-
compassed by Peerless Plywood, supra. Counsel further ac-
knowledges that even though Boucher’s remarks were sponta-
neous and not made directly to the eligible voters, that that
should not detract from the remarks speech like quality, citing
Montgomery Ward & Co., 124 NLRB 343 (1959), for the
proposition that Peerless Plywood, supra, is not limited to a
“formal speech in the usual sense.” Montgomery Ward, supra,
involved a situation where instead of an “election speech” the
Employer held a question and answer session with its employ-
ees within the 24-hour period immediately proceeding the elec-
tion, and there fore interfered with the election.
I find the situation here akin to the situation in Mediplex of
Milford, 319 NLRB 281 (1995), where a union representative
on the way to the polling area shouted out to employees in the
lobby leading to the polling area, concerning a “victory party”
to be held after the election. The Board found that if the remark
had been made, it did not constitute a speech to a massed as-
sembly of employees within 24 hours of the election as pro-
scribed by Peerless Plywood, supra. With respect to the re-
marks made by Boucher, I conclude that those remarks did not
constitute a “speech” to “massed assemblies of employees” as
envisioned by the Board in Peerless Plywood, supra, and there-
fore did not violate the rule set forth therein, which would war-
rant setting aside the election in the instant case.