River Walk Manor, Inc.

National Labor Relations Board - Board Decisions

Apr 3, 1984

269 N.L.R.B. 831 (N.L.R.B. 1984)

RIVER WALK MANOR, INC.
River Walk Manor, Inc. and District 1199E Nation-
al Union of Hospital Employees, Petitioner.
Case 5-RC-1 1986
3 April 1984
DECISION AND ORDER DIRECTING
HEARING
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held on 19 August 19831 and the Regional
Director's report recommending disposition of
them. The Board has reviewed the reord in light of
the Employer's exceptions and supporting brief and
hereby adopts the Regional Director's findings and
recommendations except as modified herein.
The Regional Director recommended that the
Emloyer's Objections 1-3, which he treated as one,
and Objection 4 be overruled. 2 The Employer con-
tends that the Regional Director erred in applying
the law and that the Regional Director improperly
resolved conflicts in testimony. We find merit in
the Employer's exceptions and accordingly we
shall direct that a hearing be held on Objections 1-
3 and 4 for the following reasons.
In Holladay Corp.3 we noted that "where an ob-
jecting party submits prima facie evidence that an
election was not held under the proper laboratory
conditions, the Board will not hesitate to commit
the necessary investment of time and money to
protect its election process." The Employer gener-
ally alleged in its Objections 1-3 that supervisors
had engaged in extensive prounion campaign ac-
tivities and threatened employees regarding job se-
curity, wages, and benefits. In Objection 4 the Em-
ployer alleged that an employee was the victim of
threats on her life and that other employees were
aware of these threats. We find that the Employer
has submitted prima facie evidence to support these
objections.
The Regional Director found that in support of
Objections 1-3 the Employer had submitted the af-
fidavits of its administrator, executive director, and
three employees. These affidavits indicate that
charge nurses4 Kiser and Purnell spoke on behalf
I The election was conducted pursuant to a Decision and Direction of
Election. The tally of ballots shows 52 for and 30 against the Petitioner;
there was I nondeterminative challenged ballot.
2 The Regional Director also reommended that the Employer's Objec-
tion 5-8 be overruled. We find no merit in the Employer's exceptions to
that recommendation.
3 266 NLRB 621 (1983).
4 The Regional Director found that the employer's charge nurses are
supervisors within the meaning of the Act.
269 NLRB No. 149
of the Union at prepetition organizational meetings;
that Kiser and other charge nurses distributed au-
thorization cards; that after the petition was filed
Kiser continued to urge employees at work to vote
for the union; and that Kiser told employees that if
they did not vote for the union they would have
no job security or wage increases and no additional
benefits. 5
The Regional Director found that in support of
Objection 4 the Employer submitted the affidavit
of the employee who was allegedly threatened.
The employee claims to have received several
threats on her life and to have told her fellow em-
ployees of these threats. The Employer's adminis-
trator states in his affidavit that employees were
aware of these threats and that they were certain
that damage to their cars was attributable to the
Petitioner.
The Regional Director recommended that Ob-
jection 1-3 be overruled because the alleged super-
visory conduct amounted to no more than an ex-
pression of personal preference by a low level su-
pervisor. The Regional Director recommended that
Objection 4 be overruled because the Employer
did not offer any specific probative evidene linking
the Petitioner to the alleged conduct. We disagree.
On 15 September 1981 the Board amended its
rules and procedures pertaining to disposition of
objections to an election. We have noted that these
revisions make clear that "ex parte investigations
are not to be used to resolve 'substantial and mate-
rial factual issues' particularly where the factual
issues turn on credibility." Erie Coke & Chemical
Co., 261 NLRB 25 (1982). In the instant proceed-
ing, the Employer has submitted affidaits to the
Regional Director alleging supervisory misconduct
and death threats. These affidavits allege with spec-
ificity both the objectionable conduct and the per-
sons responsible for it. More critically, the Em-
ployer's allegations might well warrant setting
aside the election if they are proved. We also note
the conflict in testimony between those affidavits
obtained by the Board agent and those submitted
by the Employer. Contrary to the Regional Direc-
tor, we are unwilling to determine the accuracy or
the effect of these allegations without the benefit of
a hearing. Accorindlgy, we shall remand this pro-
ceeding to the Regional Director for him to ar-
5 The Board agent investigating the Employer's objections obtained af-
fidavits from certain of the employees whose statments the Employer
submitted to corroborate its objections. We note that these affidavits con-
flict in certain respects from those obtained and submitted by the Em-
ployer,
831
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
range a hearing on the Employer's Objections 1,
2,6 3, and 4.
ORDER
It is hereby ordered that the above-captioned
matter be remanded to the Regional Director for
Region 5 for the purpose of conducting a hearing
on the Employer's Objections 1, 2, 3, and 4 in ac-
6 In ordering a hearing on Objections 2, we do so only insofar as it
relates to the issue of supervisory misconduct during the campaign. As
our adoption of the Regional Director's recommendation to overrule Ob-
jection 6 makes clear, we do not find that the administrative investigation
and resolution of the Employer's motion to dismiss petition warrants a
hearing. After an extensive investigation the Regional Director deter-
mined that there was insufficient evidence to indicate that the Employer's
charge nurses, whom he found to be supervisors, were "prime" movers
in the solicitation of authorization cards and that there was a sufficient
valid showing of interest to proceed with the election. Thus on 14 Sep-
tember t983 the Board denied the Employer's request for review of the
Regional Director's determination.
cordance with the terms of this decision and that
the Regional Director is authorized to issue a
notice of hearing.
IT IS FURTHER ORDERED that the hearing officer
designated for the purpose of conducting the hear-
ing pursuant to this Order shall prepare and cause
to be served on the parties a report containing res-
olutions of credibility of witnesses, findings of fact,
and recommendations to the Board as to the dispo-
sition of the objections. Within 10 days from the
date of issuance of the report, either party may file
with the Board in Washington, D.C., eight copies
of exceptions. Immediately upon the filing of the
exceptions, the parties filing shall serve a copy on
the other party, and shall file a copy with the Re-
gional Director. If no exceptions are filed, the
Board will adopt the recommendations of the
Hearing Officer.
832