Nichols House Nursing Home

National Labor Relations Board - Board Decisions

Dec 15, 2000

332 N.L.R.B. 1428 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1428
Nichols House Nursing Home and New England
Healthcare Employees Union, District 1199, a/w
Service Employees International Union, AFL–
CIO. Cases 1–RC–21085 and 1–RC–21086.
December 15, 2000
DECISION, DIRECTION, AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND FOX
The National Labor Relations Board has considered
objections and determinative challenges in an election
held October 26, 1999, and the hearing officer’s report
recommending disposition of them. The election was
held pursuant to a Stipulated Election Agreement. The
tally of ballots of voting unit A shows 3 for and 2 against
the Petitioner with 2 challenged ballots, and the tally of
ballots of voting unit B shows 46 for and 39 against the
Petitioner with no challenged ballots.1 The Employer’s
exceptions are confined to the hearing officer’s recom-
mendation that the challenges to the ballots of Joyce
Cummings and Susan Briggs in voting unit A be sus-
tained on community of interest grounds.2
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has adopted the hearing officer’s
findings3 and recommendations only to the extent consis-
tent with this Decision, Direction, and Certification of
Representative.
The Employer maintains a 106-bed long-term skilled
care nursing home facility. The facility is run by David
Jasinski, the administrator who is responsible for all
clinical, financial, and employment matters. Second in
command of the Employer’s facility is the director of
nursing services (DNS) who is also in charge of the nurs-
ing department. The assistant director of nursing ser-
vices (ADNS) is third in command. The duties of the
DNS and the ADNS, who are stipulated supervisors, in-
clude disciplining, hiring, firing, approving vacation
time, evaluating employees, and the administration of
labor relation matters. The Employer also employs two
supervisors and a nurse manager, also referred to as a
unit manager.

1 There were two separate voting groups in this election. Voting unit
A was composed of the Employer’s professional employees, and voting
unit B was comprised of its nonprofessional employees. The profes-
sional employees in voting unit A unanimously cast their votes against
inclusion in a single unit with nonprofessional employees.
2 Consistent with the hearing officer’s report, we certify the Union as
the exclusive representative of the nonprofessional employees (voting
unit B) in a separate unit. In the absence of exceptions, we adopt pro
forma the hearing officer’s recommendation to overrule Employer’s
Objections 1, 2, and 3, and the hearing officer’s finding that the evi-
dence does not establish that Cummings and Briggs are supervisors as
defined by Sec. 2(11) of the Act.
3 The Employer has excepted to some of the hearing officer’s credi-
bility 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 find no basis for
reversing the findings.
The Union filed a representation petition on September
20, 1999,4 seeking to represent all the registered nurses,
licensed practical nurses, and service and maintenance
employees employed by the Employer. On or about that
same day, Joselyn Opazda resigned from her position as
DNS and on September 21, Nancy Ferreira resigned
from her position as ADNS. Opazda’s last day of em-
ployment for the Employer was October 29, while
Ferreira’s last day was October 13.
Cummings, who worked for the Employer as a per
diem charge nurse, was hired to fill the DNS position on
October 5, and Briggs, who was working for the Em-
ployer as a unit manager, was hired to fill the ADNS
position on October 8. By memorandum, on October 15,
the Employer announced to the employees that Cum-
mings and Briggs would be, respectively, the new DNS
and ADNS on or about November 8. There is no indica-
tion that the Employer deviated from any practice in the
manner in which it filled the positions or announced the
promotions to its staff. Two days before the election, the
Employer introduced Cummings as the new DNS by
assembling the employees at the nursing station.5 The
Employer also referred to the promotions of Cummings
and Briggs in a campaign letter it sent to employees dur-
ing the week before the election. Neither Cummings nor
Briggs performed any DNS and ADNS duties until No-
vember 8.
The hearing officer recommended that the challenges
to Cummings’ and Briggs’ ballots be sustained on the
grounds that their pre-election hiring into the stipulated
supervisory positions of director and assistant director of
nursing services, respectively, as well as the announce-
ment of their appointments to the employees and the
Employer’s conduct in holding them out to employees as
the new DNS and ADNS, demonstrated that they lacked
a sufficient community of interest with the unit employ-
ees to be considered eligible voters. The Employer ex-
cepts, contending that the record evidence does not sup-
port the hearing officer’s finding that no community of
interest existed at the time of the election between Cum-
mings and Briggs, on the one hand, and the other bar-
4 All dates are in 1999 unless otherwise indicated.
5 Contrary to the record evidence, the hearing officer stated that
Jasinski announced Briggs’ appointment at the same time he personally
introduced Cummings.
332 NLRB No. 157
NICHOLS HOUSE NURSING HOME 1429
gaining unit employees.6 We agree with the Employer
and reverse the hearing officer’s recommended sustain-
ing of the challenged ballots. Applying established
precedent, we find, for the reasons set forth below, that
the challenges to the ballots of Joyce Cummings and
Susan Briggs in voting unit A should be overruled.
As was clear from the Employer’s October 15 an-
nouncement, neither Cummings nor Briggs were to begin
performing the duties of their new jobs until after the
October 26 election, on November 8. Jasinski’s personal
introduction of Cummings to certain shift employees on
October 24, as the new DNS as of November 8, and the
Employer’s statements concerning the promotions in its
undated campaign literature do not detract from the fact
that the current status of the two individuals as of the
date of the election was unchanged. In this regard, both
Cummings and Briggs, during the critical period, contin-
ued to perform the same work as they had performed
previously, which duties were found by the hearing offi-
cer to be insufficient to confer supervisory status. Fur-
ther, Cummings and Briggs, during the critical period
before the election, never performed any tasks associated
with the DNS or ADNS positions.
The Board has consistently held that an employee’s ac-
tual status as of the eligibility date and the date of the
election governs that employee’s eligibility to vote. Ply-
mouth Towing Co., 178 NLRB 651 (1969); Roy N.
Lotspeich Publishing Co., 204 NLRB 517 (1973). Thus,
an employee who has notified an employer of the em-

6 The Employer contends that because the community-of-interest ar-
gument, on which the hearing officer relied in her recommendation that
the challenges to the ballots of Cummings and Briggs be sustained, was
never raised at the hearing, the hearing officer is precluded from ana-
lyzing the employees’ eligibility on that basis. We reject the Em-
ployer’s argument. The Union’s challenges to their ballots clearly
placed the eligibility of Cummings and Briggs at issue based on their
impending assumption of supervisory duties. This challenge is broad
enough to encompass the issue of whether their impending assumption
of supervisory duties warranted their exclusion from the unit on com-
munity of interest grounds.
Thus, under these particular facts, we find that after the hearing offi-
cer determined that there was insufficient evidence to conclude that
Cummings and Briggs were supervisors under the Act, it was not im-
proper for her to consider, on the basis of the same fully litigated facts,
whether they had a community of interest with the unit employees
sufficient to support their inclusion in the unit. Cf. Wells Fargo Alarm
Services, 289 NLRB 562, 564 (1988) (Board found that the issue of
employees’ eligibility, having once been properly raised, encompassed
consideration of the challenged employees’ status on a ground not
raised by challenging party under particular facts presented, i.e., where
the issue involved the unit’s statutory appropriateness). In addition, we
find that the case relied on by the Employer, Iowa Lamb Corp., 275
NLRB 185 (1985), is inapposite because it involved objectionable
conduct that was neither alleged nor litigated and wholly unrelated to
the issues set for hearing. Accord: Precision Products Group, Inc., 319
NLRB 640 (1995), also cited by the Employer, which was found to be
governed by Iowa Lamb, supra.
ployee’s intention to resign or retire will nonetheless be
deemed eligible to vote in an election provided that the
employee is currently employed by the employer on the
eligibility date and at the time of the election. See, e.g.,
Columbia Steel Casting Corp., 288 NLRB 306 fn. 4
(1988), Harold M. Pitman Co., 303 NLRB 655 (1991),
and Thorn Americas, Inc., 314 NLRB 943, 945 (1994),
and cases cited therein. In those cases, the Board fol-
lowed its longstanding policy that events occurring after
an election do not affect an employee’s voting eligibility
even if the employee, after the event, clearly no longer
would have a community of interest with the unit em-
ployees.
Evenhanded application of the well-established eligi-
bility rules cited above clearly requires that Cummings
and Briggs be found eligible to vote in this case.7 Our
dissenting colleague, however, has chosen to deviate
from this well established precedent in adopting the hear-
ing officer’s finding that Cummings and Briggs are ineli-
gible based on community of interest grounds because,
as of the election, their interests were more closely
aligned with management due to their impending and
announced promotions. Specifically, the dissent finds
these individuals ineligible because Cummings and
Briggs were to assume supervisory positions two weeks
after the election and because the Employer told its em-
ployees about it on several occasions during the critical
period before the election. We do not agree. That
Cummings and Briggs were going to assume the DNS
and ADNS positions, respectively, after the election and
that this was announced to unit employees should have
no bearing on their voting eligibility even if they would
no longer possess a community of interest with the unit
employees after the critical period.
Thus, we reverse the hearing officer, overrule the chal-
lenges to the ballots of Cummings and Briggs, and direct
that their ballots be opened and counted.
DIRECTION
IT IS DIRECTED that the Regional Director shall,
within 14 days from the date of this decision, open and
count the ballots of Joyce Cummings and Susan Briggs
and prepare and serve on the parties a revised tally of
ballots for voting unit A. Thereafter, the Regional Direc-
tor shall issue the appropriate certification for that unit.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for New England Healthcare Employees
Union District 1199, a/w Service Employees Interna-
7 We believe that our approach has the advantage of providing a
bright line and sticking to it. By contrast, our colleague’s approach
injects lack of certainty into an area that has long been settled.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1430
tional Union, AFL–CIO and that it is the exclusive col-
lective-bargaining representative of the employees in the
following unit:

All full-time and regular part-time LPNs, CNAs, PCAs,
dietary employees, housekeeping employees, activities
employees, and laundry employees employed by the
Employer at its 184 Main Street, Fairhaven, Massachu-
setts Facility, but excluding all other Employees, cleri-
cal employees, managerial employees, guards and all
supervisors as defined in the Act.
MEMBER FOX, dissenting.
The majority reverses the hearing officer to find that
Joyce Cummings and Susan Briggs are eligible voters
and that their ballots should be open and counted. In so
doing, they correctly note that an employee’s eligibility
to vote turns on the employee’s actual status as of the
eligibility date and the date of the election. See, e.g.,
Plymouth Towing Co., 178 NLRB 651 (1969). But they
then discount the hearing officer’s findings that when the
election occurred, Cummings and Briggs had already
been hired for the stipulated supervisory positions of
director of nursing services (DNS) and assistant director
of nursing services (ADNS), respectively, and had been
presented to the employees as their future supervisors.
Contrary to my colleagues, I agree with the hearing offi-
cer that the facts demonstrate that these individuals at the
time of the election had already become closely aligned
with management and therefore lacked a sufficient com-
munity of interest with unit employees to be considered
eligible voters. I would, therefore, sustain the challenges
to their ballots.
In its October 15 memorandum, announcing the pro-
motions of Cummings and Briggs, the Employer urged
employees to “[p]lease join me in congratulating both
Joyce [Cummings] and Susan [Briggs] in their new lead-
ership roles. We are looking forward to them assuming
their new positions on or about November 8, 1999.” The
October 15 memorandum, was posted throughout the
Employer’s facility. During the week before the elec-
tion, the Employer sent a campaign letter to all of the
employees on the Excelsior list, urging them to vote
against the Union, explaining why they should do so,
telling them that it was “very excited” about Cummings
and Briggs becoming the new DNS and ADNS, and
promising them that Cummings and Briggs were both
“committed to assisting you reach your full potential” as
employees. Two days before the election, the employer
introduced Cummings as the new DNS by assembling
the employees at the nursing station.1 Speaking to the

1 The hearing officer’s misstatement that Jasinski announced Briggs’
appointment at the same time he personally introduced Cummings does
employees as their future supervisor, Cummings told
them that her “door would be open to all employees” if
they had “any problems,” and that she was “going to try
to work hard” to meet the employees’ needs, including
scheduling.
Thus, less than 2 weeks before the election, the Em-
ployer announced to all employees that 2 of their fellow
employees, Cummings and Briggs, were being appointed
to the second and third highest management positions in
the entire organization, and that these appointments
would become effective within 2 weeks after the elec-
tion. The Employer asked the employees to join the Em-
ployer in congratulating Cummings and Briggs on their
appointments to top management. Shortly after that, the
Employer asked the employees in writing to vote against
the Union, and expressly linked that request with both a
declaration of great excitement about its appointment of
Cummings and Briggs to their new management posi-
tions, and a promise that Cummings and Briggs would
help the employees reach their “full potential” as em-
ployees. Finally, just 2 days before the election, Cum-
mings herself told the assembled employees that, as di-
rector of nursing services, her door would be open to all
employees with “problems,” and that she was going to
work hard in her new job to meet “the needs” of the em-
ployees.
Contrary to the majority, I find this case to be distin-
guishable from one in which, prior to an election, a unit
employee has simply announced his intention to leave
the unit at some time after the election. In those circum-
stances, nothing has occurred that might put the interests
of the employee at odds with those of the unit employees
or that might otherwise cause the employee to feel an
obligation to vote in accordance with management’s
wishes. Here, however, the employees in question had,
as of the time of the election, already experienced a
change in their status vis-a-vis the other unit employees
that would reasonably be expected to cause them to re-
gard themselves as aligned with management rather than
with other unit employees.
That Cummings and Briggs were still in unit employee
positions and had not yet formally assumed their new
management positions is not dispositive. In this regard,

not affect my conclusions here in light of evidence that unit employees
were clearly aware of Briggs’ appointments prior to October 24, when
the Employer posted its memorandum announcing the promotions on
October 15. Further, in adopting the hearing officer’s recommendation
regarding Cummings and Briggs, I would not rely on the hearing offi-
cer’s finding that Jasinski changed his testimony as to whether during
the period preceding the election he asked the then current ADNS to
train Briggs or any implications in the hearing officer’s report about the
Employer’s possible motive for the timing and method of announcing
promotions of Cummings and Briggs to management positions.
NICHOLS HOUSE NURSING HOME 1431
this case seems to me to be analogous to those involving
employees who are relatives of management. In such
cases, the Board does not apply a bright-line test but
rather considers a variety of factors in deciding whether
an employee’s familial ties are sufficient to align his in-
terests with management and thus warrant his exclusion
from the unit. NLRB v. Action Automotive, 469 U.S. 490,
495 (1985). The Board has held, with Supreme Court
approval, that where an employee-relative’s interests are
aligned with management, he may be excluded from the
unit even though he enjoys no special job-related bene-
fits. Id. Thus, in Marvin Witherow Trucking, 229 NLRB
412 (1977), cited by the Court in Action Automotive,
supra, the Board held that the father of the owner of a
sole proprietorship did not have a sufficient community
of interest with the other employees to be included in the
unit, even though he worked as a truckdriver under the
same terms and conditions as other unit employees. The
Board said there that:
It would contradict human experience to contend that
the relationship between [the son] and [his father] is
merely that of Employer and part-time employee.
While this relationship may not always result in easily
identifiable special privileges or working conditions, it
establishes an area of interest not shared by the other
employees.
229 NLRB 412. Similarly, here, it would “contradict hu-
man experience” to contend that the relationship between
the Employer and the individuals he has already selected to
be director and assistant director of nursing is merely that
which exists between the Employer and the rest of the unit
employees. While the Employer’s actions may not yet, at
the time of the election, have resulted in a formal change in
Cummings’ and Briggs’ job titles or work assignments, they
clearly created for them “an area of interest not shared by
the other employees.” Therefore, I agree with the hearing
officer’s recommendation to sustain the challenges to the
ballots of Joyce Cummings and Susan Briggs.