Shawnee ManorDownload PDFNational Labor Relations Board - Board DecisionsAug 27, 1996321 N.L.R.B. 1320 (N.L.R.B. 1996) Copy Citation 1320 321 NLRB No. 171 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Cf. Jet Port Express, 284 NLRB 739 (1987) (Employee was not a special agent of the union when he wagered a six-pack of beer on the outcome of the election because the conduct ‘‘could not have been construed by any reasonable person as representing ‘union pol- icy’’’ and it was not alleged to have occurred during card solicita- tion.) 2 The Employer presented evidence that during the critical period an employee told other employees that ‘‘she thought some of the Employer’s nurses treated black employees worse than white em- ployees.’’ (Evidence was also presented concerning similar remarks made outside the critical period.) There were also rumors that the election was a ‘‘black-white’’ issue. 3 See Coca-Cola Bottling Co., 273 NLRB 444, 445 (1984) (‘‘The question of whether employees have been unfairly treated, for what- HCF Inc. d/b/a Shawnee Manor and District 1199 SEIU, The Health Care and Social Service Union, AFL–CIO, Petitioner. Case 8–RC–15261 August 27, 1996 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN The National Labor Relations Board, by a three- member panel, has considered objections to an election held on September 1, 1995, and the Regional Direc- tor’s supplemental report recommending disposition of them. The election was conducted pursuant to a Stipu- lated Election Agreement. The tally of ballots shows 68 for and 61 against the Petitioner, with 5 challenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and brief, has adopted the Regional Direc- tor’s findings and recommendations as further dis- cussed below, and finds that a certification of rep- resentative should be issued. 1. The Employer has excepted, inter alia, to the Re- gional Director’s finding that an employee who alleg- edly made threats of violence in the course of solicit- ing union authorization cards was not a special agent of the Union under Davlan Engineering, 283 NLRB 803 (1987). We agree with the Regional Director that under the circumstances presented here, the card solici- tor was not a special agent of the Union. In support of Objection 1, the Employer presented evidence that, on the day before the election, a bar- gaining unit employee approached another employee and solicited her to sign a union authorization card. The card solicitor allegedly stated that the employee had better sign a card because if she did not, the Union would come and get her children and it would also slash her car tires. In recommending that Objec- tion 1 be overruled, the Regional Director found that the card solicitor was not a special agent of the Union under Davlan because the statements allegedly made by the employee did not involve representations about the Union’s fee-waiver policies. In its exceptions the Employer argues that Davlan is not limited to state- ments concerning fee-waiver policies, and should apply to threats of violence made in the course of card solici- tation. In Davlan, the Board stated that ‘‘in the absence of extraordinary circumstances, employees who solicit au- thorization cards should be deemed special agents of the union for the limited purpose of assessing the im- pact of statements about union fee waivers or other purported union policies that they make in the course of soliciting.’’ 283 NLRB at 804 (emphasis added). Although the Employer is correct that Davlan encom- passes statements made during card solicitation con- cerning purported union policies other than fee-waiver statements, we do not agree with the Employer that it encompasses threats of union violence under the cir- cumstances presented here. In our view, alleged threats of violence, even when made in the course of card so- licitation, cannot be construed by any reasonable per- son as representing ‘‘purported union policies.’’1 Thus, where, as here, threats of union violence made by card solicitors cannot reasonably be viewed to be within the scope of their authority, a special agency relationship does not arise, and such threats are not attributable to the Union. Accordingly, we shall evaluate such con- duct under the third party standard. We agree with the Regional Director that, viewed under the standard for third-party conduct, the evidence presented by the Em- ployer, even considered cumulatively, is insufficient to warrant setting aside the election. Westwood Horizons Hotel, 270 NLRB 802 (1984). 2. The Employer has excepted to the Regional Di- rector’s failure to apply the Board’s Sewell Mfg. Co., 138 NLRB 66 (1962), analysis to its evidence concern- ing appeals to racial prejudice.2 In recommending that Objection 2 be overruled, the Regional Director found that the alleged racial remarks were made by a prounion employee and could not be attributed to the Union. He further noted, citing Benjamin Coal Co., 294 NLRB 572, 573 (1989), that the rule in Sewell ‘‘concerns prejudiced campaign propaganda issued by a party to the election, not expressions of employee bias independent of the party’s own actions.’’ In its exceptions the Employer argues, inter alia, that Sewell applies to third-party conduct and that under that standard the election should be set aside. Even assuming arguendo that Sewell is applicable to conduct by third parties standing alone, we do not find the remarks made in this case sufficient to warrant set- ting aside the election under that standard. The evi- dence presented by the Employer, even if credited, does not rise to the level of a sustained appeal to racial prejudice. The remarks do not seek to overstress and exacerbate racial feelings by irrelevant, inflammatory appeals.3 Because we find the remarks did not so in- 1321SHAWNEE MANOR ever reason, is always a legitimate topic of discussion in a union campaign.’’). 4 Sewell, 138 NLRB at 72. In view of the fact that Sewell is distinguishable, Chairman Gould finds it unnecessary to decide whether he agrees with the Board’s holding in Sewell. 5 In Carrington Health Care Center v. NLRB, 76 F.3d 802 (6th Cir. 1996), the court remanded for a hearing regarding whether union campaign cartoons may have blatantly exploited the prejudices of the voters. Here, as noted and unlike Carrington, there is no showing that the Union was responsible for any of the alleged em- ployee remarks. Further, viewing the Employer’s evidence in the light most favorable to the Employer, as the court did in Carrington, we have found no basis to conclude that there was a sustained ap- peal to racial prejudice. flame and taint the atmosphere in which the election was held that ‘‘a reasoned basis for choosing or reject- ing a bargaining representative was an impossibility,’’4 we agree with the Regional Director that Objection 2 should be overruled.5 CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for District 1199 SEIU, The Health Care and Social Service Union, AFL–CIO, and that it is the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time service and maintenance employees, including licensed prac- tical nurses, medical records clerks, patient fund coordinators, maintenance employees, activity aides, certified nursing assistants, physical therapy aides, cooks, food service workers, maintenance assistants, housekeeping and laundry employees but excluding all registered nurses, professional employees, department heads, managers, guards and supervisors as defined in the Act. MEMBER COHEN, dissenting in part. I would hold a hearing to resolve factual issues re- lating to whether the card solicitor was a special agent of the Union. These issues would include: whether the Union gave the cards to the solicitor, with the under- standing that she would solicit employees to sign them; whether the Union permitted or acquiesced in the solicitations. See Davlan Engineering, 283 NLRB 803, 804 (1987). If the evidence establishes that there was such agency, I would then consider the issue of whether threatening conduct by the agent, in the course of such solicitation, should be regarded as union con- duct for purposes of passing on objections to an elec- tion. Copy with citationCopy as parenthetical citation