Salem Village I, Inc., Salem Village Ii, Inc., And Salem Village Iii, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1988

288 N.L.R.B. 563 (N.L.R.B. 1988)

SALEM VILLAGE I 563
Salem Village I, Inc., Salem Village II, Inc., and
Salem Village III, Inc. and Professional and
Health Care Employees Division, Local 1453
Retail Clerks Union, chartered by United Food
and Commercial Workers International Union,
AFL-CIO-CLC. Case 13-CA-20575
April 21, 1988
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF THIRD ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On July 1, 1981, the National Labor Relations
Board issued a Decision and Order 1 in the above-
entitled proceeding in which it granted the General
Counsel's Motion for Summary Judgment, found
that the Respondent had violated Section 8(a)(5)
and (1) of the National Labor Relations Act and
ordered that the Respondent cease and desist there-
from and take certain affirmative action to remedy
such unfair labor practices.
Thereafter, the Respondent petitioned the United
States Court of Appeals for the Seventh Circuit for
review of the Board's Order, and the Board cross-
petitioned for enforcement. On April 9, 1982, in an
unpublished order, the court denied enforcement
and remanded the case to the Board to conduct a
hearing on various issues raised by the Respond-
ent's objections to the second election conducted in
the underlying representation proceeding. On July
19, 1982, the Board, having accepted the remand,
issued an Order Remanding Proceeding to Region-
al Director for Hearing, in which it directed that a
hearing be held before an administrative law judge
"on the issues remanded by the Court," which the
Board specified as follows:
what, if any, impact statements made by em-
ployees Linda Black and Mary Fronek had on
the second election's outcome; what, if any,
impact home visits to employees by Black and
other Union supporters had on the second
election's outcome; whether and to what
extent Black and other Union supporters were
perceived as agents of, or were authorized to
act on behalf of, the Union; and to explore
issues arising out of the "picture-taking inci-
dent" involving Union agents Ray Pavnica,
Greg Hamlet [sic], and Nancy Fisher.
On August 4, 1982, the Respondent sent a letter
to the Board objecting, inter alia, to the direction
of a hearing in the unfair labor practice proceeding
rather than in the representation proceeding and to
the Board's limitation of issues to be considered at
1 256 NLRB 1015 (1981).
288 NLRB No. 59
the hearing. Treating the Respondent's letter as a
motion for reconsideration of its Order Remanding
Proceeding to Regional Director for Hearing, the
Board on August 25, 1982, issued an Order 2 deny-
ing the Respondent's motion. In so doing, the
Board stated that its Order remanding for a hearing
in the unfair labor practice case was in accord with
longstanding policy and "accurately delineated the
issues which the court believed to require an evi-
dentiary hearing."
On October 25, 1982, Administrative Law Judge
William A. Gershuny issued the attached decision.
Thereafter, the Charging Party filed exceptions and
a supporting brief, and the Respondent filed cross-
exceptions, a supporting brief, and a brief in answer
to the Charging Party's exceptions.
The Board has considered the record and the at-
tached decision in light of the exceptions and briefs
and has decided to affirm the judge's rulings, fmd-
ings, 3 and conclusions as modified and to adopt the
recommended Order as modified.
The Respondent contends, inter alia, that the
Union's certification is invalid because the Union is
responsible for statements made during the election
campaign by employees Black, Fronek, and Swinke
which are impermissible under NLRB v. Savair
Mfg. Co., 414 U.S. 270 (1973). In denying enforce-
ment of the Board's bargaining order, the circuit
court held that a hearing was necessary to deter-
mine whether and to what extent the three employ-
ees were perceived as agents or were authorized to
act on behalf of the Union.
The judge found that Black, Fronek, and Swinke
had made statements to fellow employees during
the campaign for the second election that initiation
fees would be waived for employees who signed
authorization cards prior to the election. He further
found that these statements were attributable to the
Union on the basis of actual and/or apparent au-
thority and fell under the Savair prohibition, there-
by warranting setting aside the election and the
revocation of the Union's certification.
The circuit court stated that a Savair "violation
occurred here if Black and the others were acting
on behalf of the Union." Accordingly, accepting
the court's opinion as the law of the case, the
narrow issue presented to the Board on remand is
whether the three employees were acting as agents
2 263 NLRB 704.
3 The Charging Party has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adinnustra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for the Union when they made the impermissible
Savair statements.
Under the Board's decision in DavIan Engineer-
ing, 283 NLRB 803 (1987), which issued after the
judge's decision, we find that employees Black,
Fronek, and Swinke are special agents of the Union
for the limited purpose of assessing the impact of
statements regarding initiation fee waivers they
made in the course of soliciting authorization cards.
In this regard, the Union vested Black with actual
authority to obtain signed cards on its behalf when
it made authorization cards available to her with
the understanding that she would solicit other em-
ployees to sign them. Further, the Union vested
Fronek and Swinke with apparent authority by
permitting and acquiescing in their soliciting on its
behalf without indicating to the other employees
that such solicitation was unauthorized. Thus, in
accordance with the constraints set forth in the
court's opinion, we find that the statements made
by Black, Fronek, and Swinke warrant setting the
election aside. 4 Contrary to the judge's recom-
mended Order, however, we shall direct that a
new election be held.
ORDER
The National Labor Relations Board orders that
the certification issued in Case 13-RC-15219 is re-
voked5 and that the complaint in Case 13-CA-
20575 is dismissed.
[Direction of Third Election omitted from publi-
cation.]
4 We affirm the judge's conclusion that, because the Savor statements
require setting aside the second election, it was unnecessary to determine
whether other allegedly objectionable conduct furnished independent
grounds for setting aside the election.
5 In view of our disposition of the unfair labor practice case here, and
our finding that a new election is warranted, we reinstate the representa-
tion case, Case 13-RC-15219.
Linda McCormick, Esq., for the General Counsel.
R. Clay Bennett, Esq., William 1 Milani, Esq., and Robert
K Sholl, Esq. (Seyfarth, Shaw, Fairweather & Gerald-
son), of Chicago, Illinois, for the Respondent.
Fern Steiner, Esq. (Karmel & Rosenfeld), of Chicago, Illi-
nois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM A. GERSHUNY, Administrative Law Judge.
A hearing on the Employer's objections to conduct af-
fecting a second election was held on September 8-9,
1982, in Chicago, Illinois, pursuant to Board Orders
issued July 19 and August 25, 1982. No other issues, ju-
risdictional or otherwise, are presented in the current
posture of this case.
The procedural history of this case is long: On August
10, 1979, Local 1453 filed a representation petition seek-
ing to represent certain employees at Respondent's senior
citizen residential nursing care facility in Joliet, Illinois.
An election on October 5, 1979, which the Union lost by
a narrow margin, was set aside by the Regional Director
on the basis of union objections, and a second election
was conducted on July 11, 1980, which the Union won.
Employer's objections were considered and overruled by
the Regional Director without an evidentiary hearing
and the Board adopted his recommendations and certi-
fied the Union as exclusive bargaining representative. On
July 1, 1981, the Board in this proceeding granted sum-
mary judgment, finding a refusal to bargain in violation
of Section 8(a)(5). The court of appeals denied enforce-
ment on April 9, 1982, directing that a full hearing be
conducted on Respondent's objections. By Orders of
July 19 and August 25, 1982, the Board directed that the
hearing be conducted in the unfair labor practice pro-
ceeding before an administrative law judge and designat-
ed three objections to be heard. The court of appeals, by
Order of September 7, 1982, rejected Respondent's appli-
cation for an order directing (1) that the hearing be con-
ducted by a hearing officer in the representation case and
(2) that a fourth objection be heard as well. The court
ordered only that the hearing was to be conducted pur-
suant to its April 9 order. To ensure a complete record
for subsequent review, I received evidence also as to Re-
spondent's fourth objection.
On the entire record, including my observation of wit-
ness demeanor, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE MANCE RUMOR
The evidence is undisputed that there was circulating
throughout the bargaining unit for the entire 9-month
period between the first and second elections a story, at-
tributed to International Union Representative Hamblet,
that employee Mance, a married woman, changed her al-
legiance prior to the first election from the Union to the
Company only because Hamblet had rejected her sexual
advances. It also is undisputed that Mance had publically
announced her change of allegiance shortly prior to the
first election, not for that reason, but because of dissatis-
faction with union campaign tactics; that she served as a
company observer at both the first and second elections;
and that her effectiveness as an antiunion spokesperson
during the campaign for the second election was thereby
destroyed.
The rumor circulated widely through the bargaining
unit: numerous employees heard and discussed it on the
job; many witnessed an altercation between employees at
a company meeting conducted 1 week before the second
election, when employee Williams effectively stopped
Mance from speaking by shouting, "I'll set your ass
down. The only reason why you changed was Greg
[Hamblet] wasn't liking you back"; and many heard that
incident discussed at length on the floor of a union meet-
ing shortly thereafter.
SALEM VILLAGE I 565
The story as circulated, although differing in language,
remained constant in meaning: "Greg wasn't liking you
back"; "She's screwing around with this guy from the
Union"; "Mance made passes at him"; and "Greg
wouldn't go to bed with her." The story always was at-
tributed by employees to Hamblet: "Greg said."
Although Hainblet admitted first hearing the rumor on
the eve of the original October 5, 1979 election, he took
no action to disavow his role in the circulation of the
rumor or to deny its truthfulness for 9 months, until the
union meeting approximately 1 week before the July 11,
1980 rerun election.
Mance denied the truth of the rumor in private con-
versations with coemployees and publically at the com-
pany meeting I week prior to the second election, but
nevertheless the story persisted.
find that Hamblet was the original source of the
rumor and that he knowingly permitted it to circulate
for 9 months to neutralize Mance's effectiveness as a pro-
company supporter in the second election.
IL THE WAIVER OF INITIATION FEES
There is a considerable amount of credible evidence
that employees were told that union initiation fees would
be waived if authorization cards were signed before the
election. Employee Saunders testified that on one occa-
sion before the first election employee Linda Black,
while soliciting cards, told her and three coemployees
that initiation fees would be waived if cards were signed
then, but would be required if signed later. Employee
Staton testified that employee Mary Fronek said the
same thing to her and another employee while soliciting
cards before the second election; that the other employee
stated she would sign to avoid payment of fees; and that,
on another occasion, employee Swinke repeated the
waiver assurance to her while soliciting signatures. And,
finally, employee Riley corroborated the testimony of
Saunders, placing the conversation at a time during the
second election campaign.
Swinke was not called to testify about the waiver as-
surance. Fronek denied making any such statements and
admitted distributing only one authorization card; and
she admitted, then denied, being one of the most active
union campaigners, despite contrary testimony from
union officials and a number of coemployees. Her testi-
mony is rejected in its entirety as lacking in credibility.
Throughout her brief testimony, she left the clear im-
pression that she appreciated neither the seriousness of
the proceeding nor the obligations of her oath. Black ad-
mitted discussing the matter of fees and dues with coem-
ployees (no initiation fees for persons employed "when
the union was voted in"; no dues until 30 days after con-
tract ratification), but denied ever connecting authoriza-
tion cards with initiation fees. I am unable to credit her
testimony for a number of reasons: she was angry with
the Company because she was terminated after the
second election and this compromised her credibility; as
a witness she was unconvincing, appearing to hold back
the full account of events, particularly regarding the
nature and extent of her campaign efforts on behalf of
the Union with respect to employers other than Re-
spondent; and, finally, the substance of her admitted
statements to employees regarding initiation fees (none
for employees at the time the Union voted in) is at odds
with instructions purportedly given her by union officials
(no fees for any person employed at the time of contract
ratification).
Union policy that initiation fees would be paid only by
persons employed after contract ratification was clearly
stated in campaign literature distributed during the first,
but not the second, campaign. By the time of the second
election, almost a third of the potential bargaining unit
represented new hires. There is also testimony by union
officials that each signature card was followed up by a
home visit at which time the initiation fee policy was ac-
curately restated by a union official and that, at "every
union meeting," the initiation fee policy was restated.
However that may be, two facts are clear: one, that even
the Union's most active campaigners, Black and Fronek,
did not understand that policy (Black: no fees for per-
sons employed before Union voted in; Fronek: "Don't
understand which employees would pay fees"); the
other, that little if any attention was given by the Union
to instructing card solicitors about that policy. In this
connection, International Representative Hamblet testi-
fied that he personally instructed Black about how to so-
licit cards; that he stressed as "very important" the fact
that no questions should be answered; that no instruc-
tions were given about the payment of fees or dues; and
that it was left to Black and several other key campaign-
ers to pass along those instructions to other employees
who would be expected to assist in the card solicitation
effort. At the same time, Local Union Business Agent
Pavnica testified that he, not Hamblet, gave instructions
to Black and that he authorized her to answer questions
except those she "can't answer." Black testified that she
received solicitation instructions only once from Pavnica
or the local union president, but not from Hamblet.
I find and conclude that Black, Fronek, and Swinke
did state to coemployees that initiation fees would not be
paid if authorization cards were signed during the cam-
paign; that at least one employee signed a card for that
reason; and that such assurances could have been articu-
lated by these three lay employees only if they had been
so prompted by union officials.
Black, Fronek, and Swinke were full-time employees
of Respondent; they were not employed by the Union at
any relevant time leading up to the second election and
there is no evidence that they received any consideration
for their campaign activities. The extent of Swinke's ac-
tivities are undiscernable from this record. Fronek, I
find, was one of the most active union campaigners, but
even then her activity was limited to card solicitation, at-
tendence of union meetings, button wearing, and other
"convincer" activities ("I could find out [how you
voted] and make it hard on you"). Black, on the other
hand, clearly was the Union's "point" employee during
the entire campaign: she made the initial contact with the
Union to advise it of the employees' desire to organize;
she obtained and distributed the first authorization cards;
she instructed others on how to solicit; she handbilled
generally and, specifically, assumed primary responsibil-
ity for presenting to Respondent's administrator for sig-
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nature a "contract" drafted and distributed to her by
union officials, pursuant to which the administrator
would agree to "stop all the harassment. . . never again
unjustly lay-off, discipline or fire any worker . . . raise
your wages," pay "damages. . to the extent of compa-
ny assets" and "assume personal liability for true and
faithful performance"; she threatened (as found below) to
give an employee a "hard time" if she voted for the
Company; she made more than 40 house calls with a
union official to speak with employees; she attended all
union meetings; she was a union observer at the first
election; and she was known by bargaining unit members
as the knowledgeable campaigner to whom they could
go for information about other contracts negotiated by
the Union, expected wages and working conditions,
strike procedures, selection of stewards and negotiating
committee members, what the Union could do for them,
and the salaries of union officials. After the campaign for
the second election and although still employed by Re-
spondent, Black assisted the Union in its campaign at an-
other medical facility (not owned by Respondent): she
went on house calls with a union official; she made tele-
phone calls to other employees and relayed information
to the Union; and she related to these employees her ex-
periences at Respondent's facility. Still later after she
was terminated by Respondent, Black spent a great deal
of time at the union hall and volunteered for picket duty
at another employer's facility. All the while, the Union
attempted to find employment for her.
HI. BREACH OF BALLOT SECRECY
There is credible evidence that Black, Fronek, and
Swinke indicated they could ascertain how an employee
voted and would make it hard on those who voted
against the Union. Employee Staton testified that on sep-
arate occasions Fronek and Swinke told her they could
determine how employees voted; that Fronek told her,
"I could find out and make it hard on you"; that Swinke
said the same thing; and that Black said, "If you voted
for the Company, I'll give you a hard time." None of the
three was Staton's supervisor. Staton related this to her
husband (a nonbargaining unit employee), security guard
Botkin, and a nurses aide. Botkin and her husband dis-
puted the claim that votes could be identified. Employee
Saunders testified that Black, several months after the
first election, indicated that she knew how Sanders
voted. Black denied making such a statement. As indicat-
ed above, her testimony and that of Fronek is not cred-
ited.
IV. UNION PHOTOGRAPHING OF COMPANY
SUPPORTERS
Employee Botkin testified that, one evening prior to
the second election, Pavnica, on the property with other
campaigners, took two photographs of him about 10-15
minutes after he had rejected a union handbill. At the
time he saw the two flashes, Botkin was seated in a com-
pany truck 50-60 yards from Pavnica. He testified that
Pavnica took two additional photographs of nurses and
aides. He felt he was being harassed. Supervisor Mudron
testified she saw an unidentified union organizer panning
a camera toward one of Respondent's buildings 3-5
weeks before the rerun election, but saw no flashes.
Her testimony is rejected for vagueness; Botkin's is
credible, but no improper inferences can be drawn. Pav-
nica's testimony (as well as the photographs and nega-
tives) indicates that only one photograph was taken of
Botkin and several others were taken of union campaign-
ers; that Botkin's vote was to be challenged and the pho-
tograph might be of some evidentiary value; that the
other photographs were taken merely to use up the roll
of film before developing it the next day for other unre-
lated purposes; and that no effort was made to photo-
graph employees who rejected union literature.
V. DISCUSSION
NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973), compels
setting aside an election when a union offer to waive an
initiation fee is conditioned on an employee signing an
authorization card prior to the election. Credible evi-
dence, as found above, establishes that union supporters
Black, Fronek, and Svvinke all made such statements on
separate occasions during the campaign for the second
election and that at least one employee acted on the
waiver assurance. The real issue presented is whether
such employee statements are attributable to the Union.
For reasons set forth below, I conclude that they are.
As discussed above, there is strong circumstantial evi-
dence to suggest that Black, Fronek, and Swinke were
actually authorized and instructed to make waiver assur-
ances to employees in an effort to obtain authorization
card signatures. For example, the testimony of union of-
ficials about what instructions were given to card solici-, tors was contradictory in significant respects; the testi-
mony of Black and Fronek regarding union policy con-
cerning the payment of initiation fees was conflicting;
and lay employees such as Black, Fronek, and Swinke
could not have articulated the assurances I find were
given without prompting by or instruction from experi-
enced union officials.
Moreover, applying common law agency principles,
NLRB v. United Insurance Co., 390 U.S. 254 (1968), as
modified by Section 2(13) of the Act (that eliminates
actual authority or subsequent ratification as controlling
factors in the determination of "agency" issues), I fmd
Black, at all relevant times, to be an agent of the Union
based on the doctrine of apparent authority. In this re-
spect, Emerson Electric Co., 247 NLRB 1365 (1980), is
dispositive. There, the Board affirmed an administrative
law judge's determination of agency during an organiza-
tional campaign:
Alone among the union adherents, Jason Williams
enjoyed a position in which employees looked to
him as a spokesman for the Union when he purport-
ed to speak on its behalf. . . . Williams helped to
initiate the campaign. He was in contact with Union
vice president, Lynn Bonner, even before Carlton
Homer arrived to begin the campaign. Williams
was considerably more active than any other em-
ployee, and as indicated was reimbursed for some of
his expenses. By his own testimony, he obtained
SALEM VILLAGE I 567
some 50-signed authorization cards, and engaged in
hundreds of conversations about the campaign. Em-
ployees, including union adherents, looked to him as
a person with inside information and some responsi-
bility in conducting the Union's campaign. All this
does not mean that Williams lost his right to express
his own views as an individual employee, or that he
did not do so on occasions. However, when Wil-
liams purported to speak on behalf of the Union, he
was looked upon by the employees as a person who
spoke with inside information and some degree of
authority. Therefore, Williams can fairly be consid-
ered as a Union agent in making such statements.
[Id. at 1380-1381.]
Unlike employee Williams in Beaird-Poulan, Black was
not reimbursed for "some" of her expenses. Like Wil-
liams, however, Black was the Union's "point" employee
during the entire campaign: she made initial contact with
the Union; she was given the first authorization cards for
distribution; she was authorized to instruct other employ-
ees on how to solicit and what to tell those employees
being solicited; she handbilled; she assumed primary re-
sponsibility for presenting to Respondent's administrator
a "contract" prepared by the Union and given to her;
she threatened coemployees with a hard time if they
voted against the Union; she made more than 40 house
calls with a union representative; she was a union ob-
server at the first election; and, perhaps most important-
ly, she was the employee to whom all other employees
looked for inside information, such as expected wages
and benefits, strike procedures, selection procedures for
stewards and negotiating committee members, and sala-
ries of union officials. Even her activities on behalf of
the Union after the second election tend to confirm what
already was apparent before that election—that Linda
Black was an agent of the Union: she assisted the Union
during another campaign at another employer's facility;
she went on house calls with an organizer; and she re-
layed information gathered from employees at that facili-
ty to the Union. See also Jr. C Penney, 214 NLRB 445
(1975); NLRB v. Belcor, 652 F.2d 856 (9th Cir. 1981).
Finally, the Union contends that, whatever illegality
may attach to the statements of the three employees, its
effect is negated by the fact that the Union made clear
its true policy concerning liability for initiation fees and
dues: in campaign literature issued during the first elec-
tion campaign; during house visits to card signers; at
"every" union meeting; and in a letter sent to each em-
ployee. Concerning the campaign literature used in the
first campaign, a substantial part of the work force had
turned over by the time of the second campaign. Regard-
ing the letter, uncontradicted evidence is that not all em-
ployees read it. Regarding the union meetings, there is
no evidence concerning how many employees attended
at least one such meeting. And regarding house visits,
there is no evidence that the one employee who was co-
erced into signing an authorization card was given an
opportunity to revoke the authorization. In any event,
given the conflicting testimony of Black and Fronek
about what that union policy was, the waiver assurances
actually given by Fronek, Black, and Swinke and the
union statements at meetings, house calls, and in litera-
ture, there was sufficient confusion concerning the
waiver of initiation fees to interfere with the employees'
free choice. NLRB v. Johnson & Hardin Co., 554 F.2d
275 (6th Cir. 1977).
As this Savair violation itself furnishes adequate
grounds on which to set aside the election and revoke
the Union's certification as exclusive bargaining repre-
sentative, there is no need to consider at this time the
legal effect of other conduct found above.
On these findings of fact and conclusions of law, and
on the entire record and the Act and the Board's Order
of August 25,e1982, in this case (263 NLRB 704), I issue
the following recommended'
ORDER
It is recommended that the certification issued in Case
13-RC-15215 is revoked, and
IT IS FURTHER RECOMMENDED that the complaint is
dismissed.
1 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.