Midwest Division - LSH, LLC

National Labor Relations Board - Unpublished Board Decisions

Dec 22, 2010

17-RD-001789 (N.L.R.B. Dec. 22, 2010)

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NOT INCLUDED BPH
IN BOUND VOLUMES Lee’s Summit, MO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
MIDWEST DIVISION – LSH, LLC,
Employer
and Case 17-RD-1789
TERRY GAMPHER,
Petitioner
and
NURSES UNITED FOR IMPROVED PATIENT
CARE, CNA/NNOC
Union
DECISION AND DIRECTION OF SECOND ELECTION
The National Labor Relations Board, by a three-member
panel, has considered objections to an election held October 29
and 30, 2009, and the hearing officer’s report recommending
disposition of them. The election was conducted pursuant to a
Decision and Direction of Election. The tally of ballots shows
59 for and 68 against representation with 1 void ballot and 1
challenged ballot, 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
2
findings1 and recommendations,2 and finds that the election must
be set aside and a new election held.3
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the
employees in the unit found appropriate, whenever the Regional
Director deems appropriate. The Regional Director shall direct
and supervise the election, subject to the Board’s Rules and
Regulations. Eligible to vote are those employed during the

1 The Employer and the Union have excepted to some of the
hearing officer's credibility findings. The Board's
established policy is not to overrule a hearing officer's
credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are
incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957).
We have carefully examined the record and find no basis for
reversing the findings.
2 In the absence of exceptions, we adopt pro forma the
hearing officer’s recommendation to overrule Objection 11.
We adopt, for the reasons set forth in his report, the
hearing officer’s finding that the Employer was not denied
due process and his recommendations to sustain Objections 4
and 10. We also adopt the hearing officer’s recommendation
to sustain Objection 7, but in doing so do not pass on his
finding that Director of Perioperative Services Linda
Rittermeyer’s comment, that the union contract did not
allow for shared governance, was not objectionable.
In view of our adoption of the hearing officer’s
recommendation to set aside the election based on
Objections 4, 7, and 10, we find it unnecessary to pass on
the hearing officer’s recommendations to sustain Objection
9 and to overrule Objections 3, 5, 6, 8, and 15.
Member Hayes would adopt the hearing officer’s
dismissal of Objections 3, 5, 6, 8, and 15 for the reasons
stated in the hearing officer’s report.
3 We grant the Union’s request for the inclusion of language
in the notice of election in accordance with Lufkin Rule
Co., 147 NLRB 341 (1964). Such language is standard when
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payroll period ending immediately before the date of the Notice
of Second Election, including employees who did not work during
the period because they were ill, on vacation, or temporarily
laid off. Also eligible are employees engaged in an economic
strike that began less than 12 months before the date of the
first election and who retained their employee status during the
eligibility period and their replacements. Jeld-Wen of Everett,
Inc., 285 NLRB 118 (1987). Those in the military services may
vote if they appear in person at the polls. Ineligible to vote
are employees who have quit or been discharged for cause since
the payroll period, striking employees who have been discharged
for cause since the strike began and who have not been rehired
or reinstated before the election date, and employees engaged in
an economic strike that began more than 12 months before the
date of the first election and who have been permanently
replaced. Those eligible shall vote whether they desire to be
represented for collective bargaining by Nurses United for
Improved Patient Care, CNA/NNOC.
To ensure that all eligible voters have the opportunity to
be informed of the issues in the exercise of their statutory
right to vote, all parties to the election should have access to
a list of voters and their addresses that may be used to

requested. See NLRB Casehandling Manual (Part Two),
Representation Proceedings. Sec. 11452.3.
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communicate with them. Excelsior Underwear, 156 NLRB 1236
(1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969).
Accordingly, it is directed that an eligibility list containing
the full names and addresses of all the eligible voters must be
filed by the Employer with the Regional Director within 7 days
from the date of the Notice of Second Election. North Macon
Health Care Facility, 315 NLRB 359 (1994). The Regional
Director shall make the list available to all parties to the
election. No extension of time to file the list shall be
granted by the Regional Director except in extraordinary
circumstances. Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper
objections are filed.
Dated, Washington, D.C., December 22, 2010.
______________________________
Craig Becker, Member
______________________________
Mark Gaston Pearce, Member
______________________________
Brian E. Hayes, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD