Riveredge Hospital

National Labor Relations Board - Board Decisions

Mar 13, 1985

274 N.L.R.B. 900 (N.L.R.B. 1985)

,900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Affiliated Midwest Hospital Incorporated d/b/a Ri-
veredge Hospital and Warehouse, Mail Order,
Office, Technical and Professional Employees
Local 743, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Case 13-
CA-22691
13 March 1985
ORDER DENYING MOTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 3 August 1983 the National Labor Relations
Board issued a Decision and Order in this proceed-
ing,' in which it found that the Respondent had
violated Section 8(a)(5) and (1) of the Act by refus-
ing to bargain with the Union which was certified
by the Board on 30 September 1982.2
On 14 September 1983 the Respondent filed a
motion for reconsideration asserting that the Board
did not have before it the entire record compiled
by the Regional Office when it overruled the Re-
spondent 's exceptions to the Regional Director's
Supplemental Report on Objections and Certifica-
tion of Representative . The Respondent contends
that the Board 's certification of the Union was de-
fective and that the Board's ruling that the Re-
spondent had unlawfully refused to bargain with
the Union constituted a material error of law. Spe-
cifically , the Respondent claims that the Board
could not have "meaningfully" reviewed the Re-
gional Director ' s supplemental report because it
did not have before it the evidence of employee
confusion referred to by the Regional Director
when he recommended that the Respondent's Ob-
jections 1' and 2 be overruled. Those objections re-
spectively concerned the Board 's refusal to allow
an employee to vote because her name was not on
the Norris- Thermador3 list and the discrepancies be-
tween the units set forth in the notices of elections
and the units stipulated to in the election agree-
ments.
The Respondent has raised nothing in its motion
in connection with Objection I that would warrant
our reconsidering our adoption of the Regional Di-
rector's recommendation to overrule that objection.
The Board agent 's refusal to allow Green to vote
was not objectionable because she was an ineligible
voter . The Respondent has proffered no evidence
to show that that finding was erroneous . In fact, it
would be hard pressed to do so because it stipulat-
ed to her ineligibility . Further , the Respondent has
not established that the Board agent's disallowing
Green a ballot caused confusion among the voters,
nor has it presented any cogent arguments to show
how a Board agent's acting in accordance with his
election responsibilities could cause confusion
among the eligible voters. In any event, any confu-
sion caused, while unfortunate, would be incidental
to the Board agent's properly carrying out his
duties. We perceive no basis for finding objection-
able conduct in a Board agent's proper perform-
ance of election duties. Indeed, to entertain such an
allegation would frustrate the Board's conduct of
elections by opening the door to many frivolous
objections.
Similarly, the Respondent has not submitted any
evidence that warrants our reconsidering our deter-
mination that the Respondent's second objection,
i.e., alleged voter confusion resulting from the dis-
crepancies between the units described in the
Norris-Thermador list and the notices of elections,
was without merit. There were no employees em-
ployed in the three job classifications omitted from
the Norris-Thermador list; and the one employee
employed in the job classification listed on the
Norris- Thermador list and not on the notices of
elections voted in the correct unit. Accordingly,
there is no evidence that the discrepancies caused
the disenfranchisement of any employee, let alone
voter confusion.
In Frontier Hotel, 265 NLRB 343 (1982), the
Board found that, as recently set forth in Section
102.69(g)(1)(ii) of its Rules and Regulations, the
record in objection cases in which no hearing has
been held consists of the objections, the Regional
Director's report, all documentary evidence relied
on by the Regional Director, except statements of
witnesses, the parties' briefs or other legal memo-
randa, and any other motions, rulings, or orders of
the Regional Director. The Board also noted that
the Supreme Court in NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214 (1978), upheld the
Board's policy of expressly excluding from the
record investigatory affidavits of witnesses who
have not testified at a hearing in order to protect
their confidentiality.4 The Board further stated that
Section 102.69(g)(3) of the Rules and Regulations
grants the parties an opportunity to supplement the
record before the Board with any and all docu-
ments, including affidavits, previously submitted to
the Regional Director which have not been for-
warded to the Board. As pointed out by the Board,
this is consistent with the burden on the objecting
' 266 NLRB 1198 (1983) 4 In NLRB v Northeastern University, 707 F 2d 15 (Ist Cir 1983), the
2 264 NLRB 1094 (1982) court upheld the Board's refusal to review the Region's investigatory file
3 Named for Norris-Thermador Corp, 119 NLRB 1301 (1958) on the basis of confidentiality
274 NLRB No. 124
RIVEREDGE- HOSPITAL 901
party to demonstrate to the Board that the evi-
dence it submitted to the Regional Director, if
credited, would warrant setting aside the election.'
In a case with facts similar to those presented
here, the Seventh Circuit, in L. C. Cassidy & Son v.
NLRB, 745 F.2d 1059 (7th Cir. 1984), recently
noted that the Board's new regulations had put the
employer on notice that the affidavits received in
the Regional Director's administrative investigation
were not part of the record, that it was the em-
ployer's responsibility to file supporting affidavits
with the Board, and that the employer failed to
avail itself of the Board's procedures for supple-
menting the record with the affidavits.6 The court
further stated (id. at 1065-66):
Its objections to the Regional Director's
report, moreover, do not contest any of the
factual findings of the Director, nor did Cas-
sidy at that time make any claim that the Di-
rector erred in not holding a hearing to re-
solve disputed factual issues. It merely contest-
ed the Regional Director's application of
Board precedent to the facts found. To require
the Board to review the affidavits collected by
the Regional Director in a case such as this
would force the Board "to assume the object-
ing party's burden and conduct a `fishing expe-
dition' into the investigatory file for evidence
which the objecting party has failed to identi-
fy." Summa Corp., supra at 344. See NLRB v.
Michigan Rubber Products, 738 F.2d 111 (6th
Cir. 1984) (no prejudice from failure to for-
ward record to Board where employer's ob-
jections even if true present insufficient
grounds for setting aside election). According-
ly, we hold that the Board did not err in
adopting the Regional Director's report with-
out reviewing the affidavits.
The Respondent here did not contest any of the
Regional Director's factual findings, and those fac-
tual findings did not raise any grounds which
would warrant setting aside the election. Further,
the Respondent should have been on notice that
the affidavits were not part of the record reviewed
by the Board. At the end of both the Regional Di-
rector's report and his supplemental report, a foot-
5 See also Ohio Plate Glass Co, 271 NLRB 694 (1984) There, the
Board noted that the Regional Director is not permitted to rely on facts
outside the scope of the objecting party's evidence to overrule the objec-
tion, if otherwise a prima facie showing of objectionable conduct exists
B This view is in accord with the holdings of several other circuits
NLRB v Northeastern University, supra (Ist Cir ), National Posters v
NLRB, 720 F 2d 1358 (4th Cir 1983), and NLRB v Knickerbocker Food,
715 F 2d 509 (11th Cir 1983)
note, numbered 2 in each report, states that the af-
fidavits and other documents that a party has sub-
mitted to the Regional Director would not be part
of the record transmitted to the Board. If this did
not constitute sufficient notice for the Respondent
to raise the issue in the representation proceeding,
the Respondent knew or should have known
before the Board's decision in the representation
case issued (30 September 1982) that the affidavits
had not been transmitted to the Board. By that
time, Section 102.69(g)(1)(ii) and (3) of the Board's
Rules and Regulations had been in effect over a
year.7 Yet, there was no objection to the Board's
procedures while the case was pending before the
Board and no motion for reconsideration on that
basis. Further, by the time the complaint was filed
in this unfair labor practice proceeding, the Board's
decision in Frontier Hotel had issued. The Respond-
ent, however, failed to raise the issue in either its
answer to the complaint or in response to 'the
Notice to Show Cause why the General Counsel's
Motion for Summary Judgment should not be
granted. The Respondent's failure to timely raise[
the issue of the inadequacy of the record transmit-
ted to the Board in either the representation pro-
ceeding or in the unfair labor practice case consti-
tutes a waiver precluding it from raising the issue
now.8
Accordingly, we find that the Respondent's
motion has no merit and we therefore deny the Re,
spondent's motion for reconsideration.
7 The rules were issued 9 September 1981
8 Although the Seventh Circuit in Prairie Tank Southern, Inc v
NLRB, 710 F 2d 1262 (7th Cir 1983), rejected the Board's waiver argu-
ment , the instant case is distinguishable In Prairie Tank , the court of'ap-
peals permitted the employer to raise the objections to the Board's proce-
dure for the first time in the unfair labor practice proceeding because of
two extraordinary circumstances ( 1) the Board's rules failed to make
clear that the affidavits gathered by the Regional Director would not be
forwarded to the Board, so that the Employer had no opportunity to
object to the "incomplete record" until the Board's decision on certifica-
tion issued, and (2) the Seventh Circuit's decision in NLRB v Allis-
Chalmers Corp, 680 F 2d 1166 (7th Cir 1982), which provided the 'em-
ployer with a "powerful defense," had not been decided while Prairie
Tank was still in the representation proceeding 710 F 2d at 1262-67 (In
Prairie Tank, the Respondent also raised the issue in its answer to the
complaint ) Neither ground is present here To the contrary, the Board
issued revised rule Sec 102 69(g)(1)(u) on 9 September 1981, thereby
making it clear that affidavits gathered by the Regional Director would
not be forwarded to the Board, and the decision in NLRB v Allis-)
Chalmers Corp issued on 16 June 1982 Thus, the underlying representa-
tion case was pending before the Board both when the revised rules
issued and Allis-Chalmers was decided by the court Indeed, the final de-
cision in the underlying representation case involving the Respondent did
not issue until 30 September 1982 Yet , the Respondent did not raise its
objections to the Board's procedure during the pendency of the represen-
tation case before the Board , and did not raise the issue either in its
answer to the complaint or its response to the Notice to Show Cause
Member Dennis relies solely on the waiver rationale and finds it t♦ nnec-
essary to reach any other issues