Silver Lane Pavillion

National Labor Relations Board - Board Decisions

Jun 9, 1977

230 N.L.R.B. 73 (N.L.R.B. 1977)

SILVER LANE PAVILLION
Applegate Lane, Inc. d/b/a Silver Lane Pavillion
Convalescent Home and Local 6, International
Federation of Health Professionals, a/w Interna-
tional Longshoremen's Association, AFL-CIO,
Petitioner. Case 1-RC- 14721
June 9, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and
approved by the Acting Regional Director for
Region I on October 13, 1976, an election by secret
ballot was conducted on November 4, 1976, among
the employees in the stipulated unit. At the conclu-
sion of the election, the parties were furnished a tally
of ballots which showed that, of approximately 78
eligible voters, 76 cast ballots, of which 31 were for
and 35 were against the Petitioner. There was one
void ballot and there were nine challenged ballots.
The challenged ballots are sufficient in number to
affect the results of the election. Thereafter, Petition-
er timely filed objections to conduct affecting the
results of the election.
Pursuant to Section 102.69 of the National Labor
Relations Board's Rules and Regulations, Series 8, as
amended, the Acting Regional Director conducted
an investigation and, on December 23, 1976, issued
and duly served on the parties his Report on
Objections and Challenged Ballots. In his report, the
Acting Regional Director recommended, inter alia,
that a portion of Objection 4 be sustained and the
election held herein be set aside. Alternatively, the
Acting Regional Director recommended that, should
the Board not adopt his recommendation with
respect to Objection 4, the issues raised in Objection
5 be consolidated for hearing with certain pending
related unfair labor practice cases. Thereafter, the
Employer filed timely exceptions and supporting
brief limited to the Acting Regional Director's
recommendations with respect to Objections 4
and 5.1
In the absence of exceptions thereto, we adopt, proforma, the Acting
Regional Director's recommendations that the challenge to the ballot of
Maureen Donahue be sustained; that the challenges to the ballots of Laurie
Bergeron, Laura Leonard, and Brenda Leonard be overruled and that these
ballots be opened and counted immediately; and, in the event the remaining
challenges to the ballots of Susan Priest, Anne Martin, Julia Kotulak,
Deborah Evans, and Willie Mae Wilcox are then determinative, that these
challenges be resolved after the hearing before an Administrative Law Judge
in certain pending related unfair labor practice cases. Additionally, in the
absence of exceptions thereto, we adopt, pro forma, the Acting Regional
Director's recommendations that Objections I, 2, and 3 be overruled in their
entirety and that Objection 4 be overruled in part.
In Objection 5, the Petitioner alleged that "By the above and other
230 NLRB No. 16
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
I. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purpose of collective bargaining within the
meaning of the Act:
All full-time and regular part-time service and
maintenance employees employed by the Em-
ployer at its 51 Applegate Lane, East Hartford,
Connecticut location, including housekeeping
employees, dietary and kitchen employees, laun-
dry employees, nurses aides, physical therapist
aides, recreation directors, but excluding licensed
practical nurses, registered nurses, professional
employees, office clerical employees, guards,
Administrator, Director of Nurses, Assistant
Director of Nurses, Dietician and all other
supervisors as defined in the Act.
5. The Board has considered the Acting Regional
Director's report, the Employer's exceptions and
brief, and the entire record in this case and hereby
adopts the Acting Regional Director's findings and
recommendations only to the extent consistent
herewith.
Objection 4 alleged that the Employer distributed
statements to its employees which contained material
misrepresentations of fact. The evidence with respect
to this objection is as follows. On October 12, 1976,
the Petitioner filed an unfair labor practice charge,
alleging that the Employer had removed employee
Willie Mae Wilcox from the work schedule on or
intimidatory and coercive acts the Employer made impossible any free
choice in the election." During the investigation of the objections, the
Petitioner provided evidence that the Employer promised wage increases to
its employees during the critical period. The Acting Regional Director, as
noted above, recommended that, should the Board not adopt his recommen-
dations with respect to Objection 4, the issues raised by Objection 5 be
consolidated for hearing with certain pending related unfair labor practice
cases. The Employer has excepted to the Acting Regional Director's
consideration of conduct which was not specifically alleged in the
objections. We find no merit in this exception. See, e.g., Thomas Products
Co., Division of Thomas Industries, Inc., 169 NLRB 706 (1968), and cases
cited therein.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about September 17, 1976, because of her union
activities. During the investigation of the charge, the
Employer took the position that Wilcox had not been
terminated and indicated a willingness to put her
back on the schedule. Thereafter, on October 18,
1976, the Board agent investigating the charge sent
Wilcox a letter in which he expressed the hope that
the charge could be resolved and presented the
Employer's position that Wilcox had not been
terminated. The letter further stated what action the
Employer required Wilcox to take in order to return
to work. A copy of this letter was sent to the
Employer. Approximately I week before the election,
the Employer distributed a campaign leaflet to its
employees which contained, among other things, a
letter from its administrator, Marie Bergeron, which
in part discussed Wilcox and the unfair labor
practice charge concerning her. The pertinent por-
tion of that letter reads:
Willie Mae Wilcox was never fired. She claimed
she had hurt her foot at home and was going to
the doctor. She was told to bring in a doctor's
certificate when she was ready to return to work.
The union unjustly brought charges against me.
The investigator of these charges realized this and
sent Willie a letter (copy posted in dining room).
[Emphasis in original.]
As indicated in this letter, a copy of the Board
agent's letter in fact was posted in the employees'
dining room. Subsequent to the election, on Novem-
ber 16, 1976, the Acting Regional Director issued a
complaint which alleged, inter alia, that Wilcox had
been unlawfully discharged.
In recommending that Objection 4 be sustained,
the Acting Regional Director noted that Board law
does not prohibit, during an election campaign,
statements by the parties of their positions with
respect to unfair labor practice charges and found
the statement in Bergeron's letter that she had been
unjustly charged, standing alone, was clearly permis-
sible. He further found, however, that, in reading
Bergeron's letter, the employees might conclude that
the Board agent had made remarks to the effect that
the Employer had been unjustly charged and that
since such remarks, if they had been made, would
have been made in discussions to which neither the
Petitioner nor the employees were privy, there was no
likely avenue by which the employees could have
checked the veracity of Bergeron's statements. He
therefore concluded that the Employer misrepresent-
ed the position of the Board and one of its agents and
substantially mischaracterized a Board document
concerning a material campaign issue and, relying on
Dubie-Clark Co., Incorporatead 209 NLRB 217 (1974),
found such conduct objectionable. We disagree.
In Dubie-Clark the petitioner mischaracterized an
informal settlement agreement as a Board finding
that the employer had violated the employees' rights
under the law. As evidence, the petitioner referred
Dubie-Clark's employees to an official Board notice
which had been posted pursuant to the settlement. In
fact, the settlement agreement included a statement
that the employer did not admit any wrongdoing.
The Board set aside the election because of the
substantial mischaracterization of a Board document
for partisan purposes.
In contrast, the instant case does not involve a
formal Board document, but rather merely involves a
letter signed solely by a Board agent which set forth
the Employer's position in the hope of resolving a
charge during the investigatory stage and which
carried no legal effect whatsoever. The Employer did
not patently mischaracterize Board action or its
official documents, and its statements are recogniz-
able as its own opinion; an opinion the employees
had an opportunity to evaluate by reading the letter
itself, which had been posted in the dining room and
called to their attention.
Therefore, in light of the particular circumstances
of this case, we find that the statements contained in
Bergeron's letter are insufficient to warrant the
setting aside of the election. Accordingly, we hereby
overrule that portion of Objection 4.
ORDER
It is hereby ordered that Case l-RC-14721 be, and
it hereby is, remanded to the Regional Director for
Region I for the purpose of consolidating Petitioner's
Objection 5 for hearing before an Administrative
Law Judge with the issues involved in Cases I-CA-
12228, 1-CA-12229, and I-CA-12308.
IT IS FURTHER ORDERED that the Regional Director
for Region I immediately open and count the ballots
of Laurie Bergeron, Laura Leonard, and Brenda
Leonard and issue a revised tally of ballots. If the
remaining challenges to the ballots of Susan Priest,
Anne Martin, Julia Kotulak, Deborah Evans, and
Willie Mae Wilcox are then determinative of the
results of the election, the resolution of such
challenges shall be held in abeyance pending the
disposition of the issues in Cases 1-CA-12228,
I-CA-12229, and 1-CA-12308.
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