Poplar Living Center

National Labor Relations Board - Board Decisions

Dec 13, 1990

300 N.L.R.B. 888 (N.L.R.B. 1990)

888
300 NLRB No. 119
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the absence of exceptions, we adopt, pro forma, the Regional Director’s
recommendations to overrule Employer Objections 2, 4, 5, and 6.
2 In adopting the Regional Director’s recommendation to overrule Objection
3, regarding alleged conduct by nurses who the Employer now asserts are su-
pervisors, we emphasize that the parties stipulated to the inclusion in the ap-
propriate voting groups of ‘‘all registered nurses,’’ and ‘‘all licensed practical
nurses.’’ The Employer in its objections for the first time contended that
‘‘charge’’ nurses are supervisors, notwithstanding the fact that LPNs served as
election observers for both parties without objection, and that all LPN and RN
charge nurses cast unchallenged ballots in the election. The Board ‘‘has long
held that it will not entertain postelection challenges, or objections which are
in the nature of postelection challenges.’’ Prior Aviation Service, 220 NLRB
460, 461 (1975), and cases cited at fn. 3. The Board has also held that state-
ments made by supervisors who have been included in the unit by the parties
generally do not violate Sec. 8(a)(1). Craft Maid Kitchens, 284 NLRB 1042,
1043 (1987). See also Cal-Western Transport, 283 NLRB 453 (1987).
3 Holt had both ‘‘field and shop mechanics,’’ working ‘‘in and out of [its]
shops’’ at various locations. Id. at 384. Thus, its off-site operations could have
fallen within the coverage of the alleged 8(e) clause if it operated as a subcon-
tractor for any member of the employer association in question.
4 See Hospital Employees District 1199 (Parkway Pavillion Healthcare),
222 NLRB 212 (1976).
5 It is therefore immaterial whether, in publicizing the picketing, the Peti-
tioner was merely responding to the Employer’s communications on the sub-
ject (as the Regional Director suggests in his report), or whether, as the Em-
ployer asserts, the Petitioner had at least announced its intent of showing vid-
eotapes of some of the March picketing to Poplar employees before the Em-
ployer gave its own videotape presentation.
6 The Employer also contends that the April 9 picketing was carried out in
a coercive manner that was witnessed by employees from the Poplar facility.
We find no basis for this objection, even assuming the truth of the allegations
in Administrator Dunkley’s affidavit, on which the Employer appears prin-
cipally to rely. Dunkley’s account of the alleged jostling and attempts by pick-
eters to prevent him from videotaping them indicates that the incident began
when three or four picketers stood near him, with signs placed in front of him.
Dunkley also asserts that someone in the crowd, whom he does not otherwise
ARA Living Centers Company d/b/a Poplar Living
Center and Teamsters Local Union No. 307,
I.B.T.C.W. & H.A., AFL–CIO, Petitioner. Case
27–RC–6938
December 13, 1990
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held May 5, 1989, and the Regional Director’s report
recommending disposition of them.1 The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 32 for and 28 against
the Petitioner, with 2 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief,2 has adopted the Regional Direc-
tor’s findings and recommendations, and finds that a
certification of representative should be issued.
In its exceptions, the Employer contends that the
Regional Director erred in rejecting Objection 1, which
pertains to the Petitioner’s picketing at the Employer’s
Eventide facility without having previously served no-
tices in compliance with Section 8(g) of the Act. In
particular, the Employer faults the Regional Director
for relying on Holt Bros., 146 NLRB 383 (1964), in
which the Board rejected Holt’s argument that the
union which had petitioned for an election among
Holt’s employees had engaged in objectionable con-
duct by virtue of its entry into a contract with an em-
ployer’s association that contained a clause prohibited
by Section 8(e) of the Act. (The clause required, inter
alia, that the contract ‘‘apply to subcontractors per-
forming work off the jobsite.’’)3 The Employer argues
that the present case is distinguishable from Holt Bros.
because the alleged violation here ‘‘is unlawful con-
duct and not the mere maintenance of a contract provi-
sion on a piece of paper’’ (emphasis in original).
We find this a distinction without a difference. The
gist of the Board’s rationale in Holt Bros. was that
only those unfair labor practices which pose a threat
of ‘‘restraint and coercion of employees’’ can logically
serve as a ground for setting aside an election. Section
8(e) does not fall in that category, the Board held, be-
cause it deals ‘‘only with the terms of agreement be-
tween an employer and a labor organization, regardless
of whether it is publicized to employees.’’ The same
is true of Section 8(g), which was enacted to assure
that arrangements could be made for the continuity of
patient care in the face of strikes and picketing at
health care institutions,4 and thus has no significant
connection with the restraint and coercion of employ-
ees. It is true that the Board in Holt Bros., noted ‘‘the
absence of any allegation that the [petitioning union]
sought to utilize the contract with the employer asso-
ciation to influence the employee choice of a bar-
gaining representative’’ (id.), and that the Employer in
the present case argues that Petitioner had sought to
use the Eventide picketing to influence employee
choice in the Poplar election. In our view, however,
that caveat in Holt Bros. need not be read as anything
more than the Board’s prudent avoidance of a broader
than necessary holding. It is conceivable that an un-
lawful 8(e) clause might be used to threaten employees
of a nonunion employer with a loss of jobs stemming
from their employer’s loss of contracts and thereby
might be viewed as bringing the union’s conduct with-
in the ambit of ‘‘restraint and coercion.’’ The Board
evidently did not wish to decide such a case before it
was presented. But the Employer here has suggested
no way in which the Petitioner’s publicizing of its
Eventide picketing to the Poplar employees threatens
to restrain or coerce them or any other employees.5
Thus, this case is unlike Glover Bottled Gas, 275
NLRB 658 (1985), on which the Employer chiefly re-
lies, because in that case the conduct that occurred at
one location and was publicized at another consisted of
discriminatory discharges of union supporters—unfair
labor practices which are prohibited because of their
effect on the rights of employees.6
889POPLAR LIVING CENTER
identify, yelled at him ‘‘We’re going to get you,’’ after someone else had
yelled ‘‘Look out Dunk.’’ The statements and instances of physical contact in
other cases on which the Employer relies in making its coercion argument here
all occurred in contexts which gave them a much more coercive character. In
Teamsters Local 115 (Oakwood Chair), 277 NLRB 694 (1985), for example,
on which the Employer principally relies, a picketer knocked a camera carried
by a strike replacement to the ground and crushed it. Furthermore, the judge,
whose findings were adopted by the Board, noted that some of the statements
made to the employer’s managers might be deemed innocuous had they not
occurred in a context which made them ‘‘clearly threats of harm’’ to people
and property. No such clear threats appear in Dunkley’s account.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED, that a majority of the valid ballots
have been cast for Teamsters Local Union No. 307,
IBTCWHA, AFL–CIO, and that it is the exclusive col-
lective-bargaining representative of the employees in
the following unit:
All employees employed by ARA Living Centers
Company, d/b/a Poplar Living Center, at its Cas-
per, Wyoming, facility including all licensed prac-
tical nurses, all nurses aides, dietary employees,
housekeeping and laundry employees, the mainte-
nance assistant and van driver, activities employ-
ees, and all registered nurses, excluding office
clerical employees, guards, and supervisors as de-
fined in the Act.