Shorewood Manor Nursing & Rehabilitation Center

National Labor Relations Board - Board Decisions

May 23, 1975

217 N.L.R.B. 1106 (N.L.R.B. 1975)

1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shorewood- Manor Nursing Home & Rehabilitation
Center andLocal 1199W , National Union of Hospi-
tal & Nursing Home Employees, a Division of
.RWDSU/AFL-CIO, Petitioner . Case 30-RC-2158
May 23, 1975
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was con-
ducted in the above-entitled proceeding on November
9, 1973. Upon-the conclusion of the election, a tally of
ballots was furnished the parties which shows that of
approximately 190 eligible voters 124 cast ballots, of
which 67 were fo^, and 49 against, the Petitioner; there
were 8 challenged ballots.
On November 15, 1973, the Employer filed timely
objections to conduct affecting the results of the elec-
tion. Pursuant to the Board's Rules and Regulations an
investigation was conducted and, on January 8, 1974,
the Regional Director. issued and served on the parties
his Order Directing Hearing and Notice of Hearing in
which he ordered a hearing on the issues raised by
Employer's Objections 2, 3, 4, and 5.1 Pursuant
thereto, a hearing was held on January 21, 1974, before
Hearing Officer Douchan Pouritch. All parties par-
ticipated in the hearing and were given full opportunity
to examine and cross-examine witnesses and to in-
troduce,evidence bearing on the issues. On February 7,
1974, the Hearing Officer issued and duly served on the
parties his Report on Objections, in which he found
that the Petitioner's conduct did not interfere with the
results of the "election and recommended that the Em-
ployer's objections be overruled. Thereafter, the Em-
ployer filed timely exceptions to the Hearing Officer's
report and the Petitioner filed a brief in opposition
thereto.
On May 31, 1974, the Board ordered that a further
hearing be held for the purpose of receiving additional
evidence with respect to the issues raised by Objection
4. 2
Pursuant to the Board's Order a hearing was held on
June 27, 1974, before Hearing Officer Douchan Pou-
ritch. All parties participated in the hearing and were
given full opportunity to examine and cross-examine
witnesses and to introduce evidence bearing on the is-
sues. On October 24, 1974, the Hearing Officer issued
his Supplementary Report on Objections, pertinent
I The Employer withdrew Objections 1 and 6
2 The Board deferred ruhng on Objections 2, 3, and 5 pending disposition
of the further hearing on Objection 4.
parts of which are attached hereto as an appendix,--in
which he recommended that Objection 4 be overruled
and that the Petitioner be certified as bargaining repre-
sentative. Thereafter the Employer filed exceptions and
a supporting brief, and the Petitioner filed a response
thereto.
Pursuant to the, provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this, proceeding to a three-member- panel.
-Upon the entire record in this case, the Board Binds:
1. The Employer is engaged in commerce within-the
meaning of the Act, and it will effectuate the policies
of the Act to assert jurisdiction herein.
2. The Petitioner is a labor-organization claiming to
represent certain -employees of the Employer.
3. A question affecting commerce exists concerning
the representation of the employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and (7)
of the Act. -
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for the
-purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All full-time and regular part-time employees of
the Employer at its nursing home currently
located at 3710 North Oakland Avenue, Shore- -
wood, Wisconsin, including licensed practical
nurses, but excluding office clerical employees,
professional employees, confidential employees,
guards and supervisors as defined in the-Act.
5. The Union won the election held in November
1973. We agree with the Hearing Officer that the objec-
tions to that election filed by the Employer should be
overruled and that the Union is now entitled to a cer-
tification.
Our dissenting colleague disagrees with our overrul-
ing of Objection 4. He believes it was "prejudicial" for
the Regional Director to designate as Hearing Officer
in the remanded hearing on Objection 4 the same per-
son who presided at the first hearing in the case. We
think this claim of prejudice is wholly unwarranted.
It appears that the principle basis for the dissent's
objection to the Hearing Officer's service at the second
hearing is the assertion that certain findings made by
him in his original report were "clearly contrary to the
record." It ought to be recognized that this is a refer-
ence to the fact that the Hearing Officer then found
that Board employee Schlender's remark to Trakel,
which is the basis for Objection 4, was made during the
afternoon session of the balloting, when Carlin was the
Union observer, rather than, as appears from the Hear-
ing Officer's supplemental report, during the morning
session, when Lynch was the observer. But this was
217 NLRB No. 187
SHOREWOOD MANOR NURSING HOME 1107
merely a factual inadvertence which, standing alone,
would hardly have warranted another hearing and it
surely did not disqualify the Hearing Officer from fur-
ther participation in the case.
To the extent that the dissent claims prejudice in the
assignment of the same Hearing Officer because he
discredited testimony given by Trakel at the first hear-
ing and, "Equally predictable," at the second hearing,
it needs to be pointed out that Trakel's own testimony
at the second hearing that no voters were present when
Schlender's remarks in question were made to her con-
clusively demonstrates the correctness of the Hearing
Officer's rejection of Trakel's testimony to the contrary
given at the first hearing. As for Trakel's testimony at
the second hearing that she communicated to other
employees the fact learned from Schlender that he had
been a union steward before becoming a Board em-
ployee, the Hearing Officer rejected that testimony be-
cause of Trakel's unsatisfactory recollection and hesi-
tancy in testifying. Our study of the record discloses
support for the Hearing Officer's credibility resolutions
and the dissent points to nothing which reflects ad-
versely upon it.
It must not be overlooked here that our real concern
is with what Schlender said to TrakeJ rather than with
whether Trakel repeated what he said to other em-
ployees. The case was remanded on that precise issue
and there is now no factual dispute about it. Schlender
simply related his prior experience in labor-manage-
ment relations as the reason, he believed, for his hiring
by the Board.' Clearly, this is no basis for setting
aside the election, and the dissent does not argue other-
wise.
Equally without merit is Member Kennedy's con-
tinued insistence upon a remand for further evidence of
an incident involving Schlender and a Board female
clerical employee. In the room in which the election
was held, there were four people (two observers,
Schlender, and the clerical), three chairs, and a bed
used by the Employer for training purposes. In the
midst of a "lot of joking," as described by Trakel who
related the incident, Schlender invited the clerical to sit
on the bed. This is all there is to the incident. Nobody
suggests that anything more or different happened. We
therefore perceive no need for a hearing to inquire
further into the matter nor any reason for believing that
the incident could have had any effect on the voters or
the election or the sanctity of the Board's processes.
Accordingly, having considered the objections, the
Hearing Officer's reports, and the exceptions and
briefs, we hereby adopt the Hearing Officer's findings,
3 Schlender, no longer employed by the Board, was at the time of the
election a student at the University of. Wisconsin, employed under a work-
study program sponsored by the Federal Government.
conclusions , and recommendations4 and shall certify
the Union.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Local 1199W, National
Union of Hospital & Nursing Home Employees, a
Division of RWDSU/AFL-CIO, and that, pursuant to
Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the unit found
appropriate herein for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of em-
ployment.
MEMBER KENNEDY, dissenting:
L do not agree with my colleagues' adoption of the
Hearing Officer's recommendation that Objectian 4 be
overruled and that the Petitioner be certified.
The issue involved in this second hearing conducted
on the Employer's objections was a statement by the
Board agent that he believed that he had received his
part-time job with the Board because he had been a
union steward on his previous job. In the first hearing,
Trakel was the Employer's principal witness with re-
spect to this objection. The Hearing Officer discredited
Trakel as a witness and recommended that the objec-
tion be overruled. The Board directed a second hearing
because the Hearing Officer's report was unsatis'fac-
tory. Certain findings of ,the Hearing Officer were
clearly contrary to the record. The Hearing Officer
who had conducted the first hearing was designated by
the Regional Director as the Hearing Officer in the
second hearing. Predictably, Trakel was again the Em-
ployer's principal witness, Equally predictable, the
Hearing Officer discredited her testimony and recom-
mended the objection be overruled.
The designation of the same Hearing Officer at the
second hearing is prejudicial. I dissented as to the lim-
ited scope of the hearing with respect to the Board's
agent's conduct.' Under these circumstances, I am
not prepared to find that the election was conducted in
a manner that would comport with the impartiality and
competency expected of the Board in the conduct of its
4 Employer's exceptions raise no material or substantial issues of fact or
law warranting reversal of the Hearing Officer's findings and recommenda-
tions with respect to Objections 2, 3, and 5.
$ In support of Objection 4, the Employer offered evidence of verbal
exchanges between a male Board agent and a female Board agent with
respect to a bed in the polling place which it asserts destroyed the proper
atmosphere required in an election The Hearing Officer made no finding
with respect to this evidence in overruling the objection. I believe that in
determining whether the totality of the Board agents' conduct met the
standards that the Board expects of its Board agents, the scope of the second
hearing should have included the conduct of Board agents in the polling
area.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elections and cannot join my colleagues in overruling
this objection.
APPENDIX
FINDINGS OF FACT AND
RECOMMENDATIONS
The representation election took place between the
hours of 6 :30 a.m ., to 8:00 a .m. and 2 :00 p.m . to 4:30
p.m. on November 9, 1973 , in the Employer's class-
room . Present at the polling place throughout the
morning period of the election were James Schlender,
Debra Trakel_and Mary Lynch . James Schlender, the
Board Agent who conducted the election , was a college
student employed part-time by the Milwaukee Region
of the National Labor Relations Board to conduct rep-
resentation elections . Debra Trakel , the observer for
the Employer at the election , was a secretary employed
by the nursing home at the time of the election. Mary
Lynch , the observer for the Union at the election, was
an employee in the voting unit at the time of the elec-
tion.
During a lull in the voting in the morning voting
period at about 7:15 a.m., Trakel asked Schlender how
he had got his job as an NLRB agent. Schlender replied
that he was a student at the University of Wisconsin,
Milwaukee branch, and that he had written on his
application at the University form that he had pre-
viously been a union steward at his former job.
Schlender told Trakel that he felt that he had gotten his
job with the NLRB because he had been a union stew-
ard at his previous job. At the second hearing , Trakel
and Mary Lynch testified that they were the only in-
dividuals present when Schlender made the above re-
marks.
In the afternoon voting period , Schlender and Trakel
were present . However , Mary Lynch was replaced by
Kattie Carlin as union observer.
Based on the uncontradicted testimony of Trakel
and Lynch at the second hearing , I fmd that Trakel and
Lynch were the only persons present when .Schlender
gave his opinion as to why he had obtained his job as
a Board agent.
At the second hearing Miss Trakel, the Employer's
observer claimed that during the break in the election,
she told several employees who were eligible to vote in
the election , but who had not yet voted that Schlender
had been a union steward before becoming an NLRB
agent . However, since Miss Trakel could not remember
the names of any of these employees and her testimony
on this subject was hesitant, I am discounting Miss
Trakel's testimony that during the break between vot-
ing periods , she informed several eligible employees
who had not yet voted that Schlender had been a union
steward. In any event , I am of the opinion that even if
the observer for the Employer had informed eligible
voters before they had voted that Schlender had been
a union steward before becoming a Board agent , this is
not ground for setting the election aside . In this case,
there is no evidence that any agent of the Petitioner
during the break between voting periods informed eligi-
ble employees before they had voted that Schlender had
been a union steward in an attempt to influence the vote
of these employees.
At the second hearing, Mary Lynch, the Union ob-
server, testified to the effect that at no time during the
day of the election did she inform anyone of Board
Agent Schiender 's opinion as to why he had got his job
with the Board . I credit the above -testimony of Mary
Lynch . During her testimony , Debra Trakel never
claimed that she had informed anyone before the polls
closed at 4 :30 p.m. on November 9, 1973 , of Schlen-
der's opinion as to how he got his job.
Based on the testimony of Trakel and Lynch, I fmd
that with the possible exception of Mary Lynch, the
Union observer, no eligible voter heard or was aware of
Schlender's opinion as to how he may have got his job
before they had cast their ballot in the representation
election.
I therefore conclude that Schlender 's expressed opin-
ion as to how he may have gotten his job could not have
effected the votes of the employees . However , this does
not dispose of the issue since this is not the only test to
be applied.
In Athbro Precision Engineering Corp., 166 NLRB
966 (1967), the Board states:
The Board in conducting representation elections
must maintain and protect the integrity and neu-
trality of its procedures. The commission of an act
by a Board Agent conducting an election which
tends to destroy confidence in the Board 's election
process , or which could reasonably be interpreted
as impuning the election standards we seek to
maintain , is a sufficient basis for setting aside that
election.
Applying the above test, I fmd that the Board
Agent's opinion as to the reason why he had been hired
by the NLRB expressed in a casual conversation with
the Employer's observer did not compromise the
Board's standards. Accordingly , it is recommended
that Objection No. 4 be overruled in its entirety.
Conclusion and Recommendation:
Upon the findings of fact made herein and the princi-
ple of laws discussed above , the undersigned recom-
mends that the Employer 's Objections to the Election
and to the Conduct Affecting the Results of the Elec-
tion be overruled in their entirety, and that Certifica-
tion of Representative issue.