Niagara Froniter Methodist home, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1977

232 N.L.R.B. 384 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Niagara Frontier Methodist Home, Inc., and Niagara
Frontier Nursing Home, Inc., d/b/a Beechwood
Residence and Nursing Home and Buffalo and
Western New York Hospital and Nursing Home
Council, AFL-CIO Petitioner. Cases 3-RC-6813
and 3-RC-6814
September 27, 1977
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered objection to an
election held on February 17, 1977,1 and the
Regional Director's report recommending disposi-
tion of same.2 The Board has reviewed the record in
light of the exceptions and briefs, and finds merit in
the Employer's exception. Accordingly, the Board
adopts the Regional Director's findings and recom-
mendations only to the extent consistent herewith.3
The Regional Director found that, by certain
statements, the Employer tended to convey to
employees that, in the event the Petitioner won an
election, it would enter into negotiations with a fixed
inflexible position regarding wages, benefits, and
other terms and conditions of employment, thereby
conveying to employees the message that it would be
futile for them to select the Petitioner as their
collective-bargaining representative. He found that
the statements also conveyed a threat of loss of
benefits.
The statements in issue are contained in five letters
sent to the employees and in two speeches which
were read to the employees. Briefly they are as
follows:
The first letter, dated December 14, 1976, ex-
pressed the Employer's confidence that the employ-
ees would once again reject the Union's "attempt to
get a piece of [the employees'] hard-earned money in
the form of dues, in exchange for vague promises of
benefits which the Union cannot deliver without the
consent of Beechwood." In the next letter of January
11, 1977, the Employer stated:
The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was: 56 for, and 85 against, the
Petitioner; there were 2 challenged ballots, an insufficient number to affect
the results.
2 All dates referred to herein occurred in 1977 except as otherwise stated.
See pertinent portion of the report attached hereto.
:3 In the absence of exceptions, we adopt, pro form.a, the Regional
Director's findings as to the objections he recommended be overruled.
232 NLRB No. 59
You may have noticed a recent article in the
Buffalo Evening News in which Frank Ervolino,
Executive Secretary of the union, stated that
because of the frozen reimbursement rates,
Nursing Homes under contract cannot grant
wage increases negotiated by unions.
The Employer summed up by stating:
You should wonder . . . exactly what the union
claims it is going to get for you in exchange for
your dues money. I believe you would be
throwing your hard-earned money down the
drain.
In a letter of January 18, the Employer, after
noting that it had made every possible adjustment
within the reimbursement formula which is imposed
by the State of New York, stated, "The union would
be powerless to change your wages at this time, and
they know it." The last letter,4 dated February 9,
referred to the fact that wage adjustments had been
and would continue to be made within the reim-
bursement rates imposed by New York State and
questioned what concrete benefit the Union intended
to seek if it should win the election. Included was the
following statement:
In order to obtain these wages, benefits, and
working conditions, no employee has been re-
quired to pay dues or otherwise contribute any
part of his pay to a labor union. As you know,
paying union dues could actually result in less
take home pay for you and would be a severe
hardship for our many part-time employees.
Meanwhile, in a series of speeches to small groups
of employees from February 3 through 7,5 the
Employer stated:
The Union can make promises such as stated at
their meetings . . . these promises are entice-
ments. They are negotiable issues-wage controls
remain in force through control of reimbursement
by the State of New York.
Later in that speech the Employer stated:
While we have not been able to give all the
increases we would like, due to control by the
4 In a January 26 letter, the Employer mentioned that the Operating
Engineers had not received under its contract with the Employer any more
wages and fringe benefits for the employees that union represented than the
unrepresented Beechwood employees. It further noted that the represented
employees actually took home less than nonunion employees earning the
same amount.
I There was also a makeup meeting on February 12.
384
NIAGARA FRONTIER METHODIST HOME
Health Department-we have kept our
word . . .
And the Employer's final speech on February 15 to
all employees contained the following statements:
Our wages are at least as good as any in the
industry, and you are fooling yourself if you think
that getting the Union in here is going to result in
any immediate increase in your wages. Those
wage rates are fixed by the reimbursement plan of
the State of New York, and we are doing
everything we can to get more for our employees.
Later the Employer stated:
Once again, Beechwood pays benefits that are
comparable to any in the industry. You should
know that you may be jeopardizing these benefits
by letting the Union in here. When the Union
negotiates a contract, they can negotiate away
existing benefits in order to get something they
want, such as a union shop clause.
Still later, the Employer stated:
Remember that the only way a union can enforce
its demands is by calling a strike.
Unlike the Regional Director, we conclude that the
above statements taken in their total context do not
evidence that the Employer conveyed or tended to
convey to employees that it would refuse to bargain
by entering into negotiations with a fixed inflexible
position regarding wages. The Regional Director
acknowledged in his report that between 80 to 90
percent of the Employer's patients have the cost of
services provided by the Employer paid in full or part
by Medicaid. Medicaid rates are set by the New
York State Department of Health. As described in a
newspaper report from the Buffalo Evening News of
June 26, 1976, the State of New York is engaged in a
campaign to hold the line on these rates. Obviously,
the Employer's income was, and would be, greatly
affected by such a freeze. Correspondingly, its ability
to increase wages was similarly affected. Thus, even
if, as concluded by the Regional Director, the
Employer's statement that "wage rates are fixed by
the reimbursement plan of the State of New York"
was "not necessarily true" because the reimburse-
ment rate encompassed all costs of the Employer not
just those expended on labor, the fact remains that
whatever costs were involved had to be met in large
measure out of the funds provided by the State. It is
also apparent that each recurring cost would have a
I The five letters, dated December 14. 1976, January II, January 18.
January 26, and February 9, which were provided by the Employer dunng
fixed base and that its budgetary range would be
closely circumscribed by the amount of every other
regular or anticipated cost. Consequently, it would
be pure conjecture on our part to say that the
Employer could lower or raise one cost item at the
expense of another.
In view of the foregoing, we find that the
Employer's statements did not have the tendency to
convey to the employees that the Employer would
enter contract negotiations with a fixed inflexible
position. Rather, we believe that such statements
constituted a reasonable expression of the Employ-
er's view of the realities of the situation in light of the
State's attempt to hold the line on Medicaid
payments. Thus, the Employer's statement to the
effect that the Union can only enforce its demands
by striking did not in this context rise to the level of
conveying to the employees the inevitability of a
strike due to the futility of attempting to reach an
agreement in negotiations.
As to the loss of benefits, we are unable to perceive
anything in the Employer's remarks which reason-
ably could be construed as a threat of loss of
benefits. Thus, we shall overrule the objection in its
entirety.
Inasmuch as we have overruled the objections, and
as the tally of ballots reveals that the Petitioner has
not received a majority thereof, we shall certify the
results of the election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Buffalo and Western
New York Hospital and Nursing Home Council,
AFL-CIO, and that said labor organization is not
the exclusive representative of all the employees, in
the unit herein involved, within the meaning of
Section 9(a) of the National Labor Relations Act, as
amended.
APPENDIX
OTHER CONDUCT NOT SPECIFICALLY ALLEGED IN
OBJECTIONS
The investigation revealed that during the election
campaign the Employer sent to employees eligible to vote,
five letters, pertaining to the Petitioner and the up-coming
election." In addition, the Employer's Executive Director
also testified that during the campaign he held two
meetings of employees at which he read from prepared
texts. The first meeting was actually a series of approxi-
mately twenty-five small group meetings of employees held
by the Employer in the period of time from February 3
the investigation, are attached hereto as exhibits 2, 3, 4. 5, and 6 respectively
[omitted from publication ].
385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through February 7, with a make-up meeting on February
12 for whomever missed the earlier meetings. The second
meeting was held on February 15, beginning at 2:00 p.m.
for whomever was scheduled to work at the time. During
the investigation the Executive Director provided copies of
the said speeches 12 from which he testified that he did not
deviate during their presentations, except to apologize for
having to read them.' 3
The undersigned, having fully and carefully reviewed
these various pronouncements made by the Employer
during the campaign, concludes that when viewed in their
total context they conveyed to employees that in the event
the Petitioner won the election, the Employer would enter
negotiations with Petitioner with a fixed position regarding
employees' wages, benefits and other terms and conditions
of employment, and as such conveyed to employees that it
would be futile for them to select the Petitioner as their
collective bargaining representative. In that regard, the
undersigned notes the Employer's reference in its February
15 speech that:
"...our wages are at least as good as any in the
industry, and you are fooling yourself if you think that
getting the Union in here is going to result in any
immediate increase in your wages. Those wage rates are
fixed by the reimbursement plan of the State of New
York and we are doing everything we can to get more
for our employees."
The contention that wage rates are fixed by a reimburse-
ment plan is not necessarily true, as the reimbursement rate
is designed to cover an employer's total costs, including
such items as administration, insurance and security as well
as labor costs. Nowhere does the rate plan specify or
require that an employer allocate a certain percentage
thereof for labor costs. Rather, it is certainly conceivable
that a union seeking a certain wage rate increase could as a
quid pro quo, modify other proposals, to enable the
employer to make adjustments. Thus, it appears that the
Employer's statement in this regard reveals a fixed position
of its own making and within its own control.
The Employer in this same vein, stated in its first speech
that:
The union can make promises such as stated at their
meetings . . . These are enticements. They are negotia-
ble issues-wage controls remain in force through
control of reimbursement by the State of New York.
and
While we have not been able to give all the increases we
would like, due to controls by the Health Depart-
ment-we have kept our word .... "
t2 A copy of the first speech (hereinafter "first speech"), titled
"Employee Small Group Meetings-February 1977", is attached hereto as
Exhibit 7. A copy of the second speech, titled "Arthur E. Shade-Final
Speech", is attached hereto as Exhibit 8 [omitted from publication .
Although this speech indicates that it was presented on February 16 as well
as February 15, there is no evidence that the meeting was held on February
16 although it may have been the Employer's original intent to hold it on
that date.
13 In this connection various employee witnesses in behalf of Petitioner
The Employer appears to be saying that the Petitioner
would be powerless to obtain better wages for bargaining
unit employees, because of the Employer's fixed position
that it will rely on its self-determined criteria for determin-
ing wage levels. In fact, in its letter of January 18, the
Employer stated "The Union would be powerless to
change your wage rates at this time, and they know it."
In its February 15 speech, the Employer, in discussing
existing benefits, stated that "You should know that you
may be jeopardizing those benefits by letting the union in
here." The Employer then went on to state that when a
union negotiates a contract it can negotiate away existing
benefits, and added, "The best way to guarantee that your
existing benefits are not jeopardized . . . is to vote 'no'
The same theme was continued in the Employer's
February 9 letter wherein it indicated that benefits and
wages had been up-graded as frequently as possible within
reimbursement rates, and that paying union dues (while
not receiving any additional benefits) "could actually result
in less take home pay for you."
In addition, as indicated in its very first statement 14
regarding the Petitioner, which set the tone for its later
pronouncements, the Employer stated that ". .. the union
cannot deliver without the consent of Beechwood."
Further, the Employer's January II letter made reference
to and, it would appear, took out of context, certain
statements of a representative of the Petitioner which
appeared in an article in the Buffalo Evening News ' 5 to the
effect that because of frozen reimbursement rates, other
nursing homes were unable to pay the wage increases
negotiated by Unions. The Employer summed up by
stating that "You should wonder . . . exactly what the
union claims it is going to get for you in exchange for your
dues money. I believe that you would be throwing your
hard-earned money down the drain."
As yet another indicator of its preset fixed refusal to
bargain, the Employer stated in his February 15 speech
that, "The only way a union can enforce its demands is by
calling a strike" which statement, when read in conjunction
with its previous statements, tended to convey to employ-
ees the inevitability of a strike due to the futility of
attempting to reach an agreement in negotiations. In this
connection, the undersigned notes that nowhere in its
letters or speeches does the employee acknowledge that it
would have an obligation to bargain with the Petitioner in
the event that a majority of its employees selected it as their
collective bargaining representative.
Thus, on the basis of the foregoing, the undersigned
concludes that the aforementioned speeches and letters,
when viewed in the total context of the Employer's
campaign, tended to convey to employees that the
Employer would enter into contract negotiations with a
who were in attendance at either or both meetings testified that it appeared
that the Employer was reading from the speech and did not deviate from the
papers before him in reading.
"1 As set forth in the December 14, 1976 letter to employees.
15 A copy of the Article, provided by the Employer, which appeared in
the June 26, 1976, edition of the Buffalo Evening News is attached hereto as
Exhibit 7 [omitted from publication]. It does not appear that the said article
was given to employees as part of the Employer's campaign material.
386
NIAGARA FRONTIER METHODIST HOME
fixed, inflexible position regarding wages, benefits and
other terms and conditions of employment. It is further
concluded that the Employer conveyed to employees the
message that it would be futile for them to select the
Petitioner as their collective bargaining representative, as
not only would employees fail to benefit from such a
selection, but they also could lose certain benefits which
they already enjoyed. As the Board stated in The Trane
Co., 137 NLRB 1506, 1510, "There is no more effective
way to dissuade employees from voting for a collective-
bargaining representative than to tell them that their votes
for such a representative will avail them nothing." See also
Marathon Metallic Building Company, 224 NLRB 121
(1976); GTE Sylvania Incorporate4 227 NLRB 146 (1976).
The undersigned therefore recommends that this other
conduct which was not specifically alleged by Petitioner in
its Objection but which was revealed during the investiga-
tion be found to constitute grounds to warrant the setting
aside of the election.
387