St Vincent Hospital

National Labor Relations Board - Board Decisions

Apr 29, 2005

344 N.L.R.B. 586 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 71
586
St. Vincent Hospital, LLC and United Food and
Commercial Workers International Union, Lo-
cal 1445, AFL-CIO. Case 1–RC–21717
April 29, 2005
DECISION AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The National Labor Relations Board has considered
objections and determinative challenges in an election
held February 27, 2004, and the judge’s decision recom-
mending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 218 for and 207 against the Peti-
tioner, with two void ballots and 21 challenged ballots, a
sufficient number to affect the election results.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has adopted the judge’s findings1
and recommendations only to the extent consistent with
this Decision and Direction.
Background
The Employer is a hospital in Worcester, Massachu-
setts. The Employer operates four facilities: the Medical
Center at 20 Worcester Center Boulevard (Medical Cen-
ter), which is the Employer’s principal facility; the
Vernon Hills facility at 25 Winthrop Street (Vernon
Hills), which is located about 2 miles from the principal
facility and houses a psychiatry unit, an ambulatory
clinic, radiation oncology, and a purchasing department;
and the 10 and 20 Washington Square facilities, which
are located across the street from the Medical Center.
The 10 Washington Square facility houses the facilities
department, and the 20 Washington Square facility
houses the finance, payroll, and accounting departments,
part of the information systems department, and the Em-
ployer’s business office.
On January 21, 2004,2 the Employer entered into a
Stipulated Election Agreement (Agreement) with the
Petitioner providing that an election would be conducted
on February 27 among employees in an appropriate col-
lective-bargaining unit consisting of all full time and
regular part time “nonprofessional” employees—
including, inter alia, clerks, secretaries, patient care assis-

1 The judge was sitting as a hearing officer in this representation
proceeding.
The Employer has excepted to some of the hearing officer’s credibil-
ity findings. The Board’s established policy is not to overrule a hearing
officer’s credibility resolutions unless a clear preponderance of all the
relevant evidence convinces us that they are incorrect. Stretch-Tex Co.,
118 NLRB 1359 (1957). We have carefully examined the record and
find no basis for reversing the findings.
2 All dates are in 2004, unless otherwise noted.
tants (PCAs), aides, and assistants—employed at the
Employer’s Medical Center and Vernon Hills facilities.
The Agreement did not include employees employed at
the 10 or 20 Washington Square facilities.
At the election, the Employer, the Petitioner, and the
Board agents, variously challenged the ballots of the fol-
lowing 21 employees: Karla Aubin, Ife Bath, Kathy Ber-
nard, Michelle Cormier, Linda Goding, Lisa Hall,
Yvonne Jones, Erin Keller, Jane Lantz, Elizabeth Li-
donde, Melissa Marcucci, Lynne Mello, Donna Mosher,
Jennifer Nedoroscik, Roberta Ohman, Kim Pilat, Ellen
Randall, Jose Rubio, Alan Wesson, Kathy Zack, and Mi-
chelle Zaleski.3
Following the election, the Employer and the Peti-
tioner also filed timely objections on March 5 to the con-
duct of the election and conduct affecting the election
results. The Petitioner, however, subsequently withdrew
its objections.
On April 26, the Regional Director issued a Notice of
Hearing and Report on Challenges and Objections, in
which she resolved nine of the challenged ballots pursu-
ant to the agreement of the parties. In this report, the
Regional Director found, inter alia, that Hall and Pilat
were eligible voters because they were employed in posi-
tions included in the proposed unit, and she noted that
the Petitioner had withdrawn the challenge to their bal-
lots.4 In addition, the Regional Director noted that the
Petitioner had withdrawn its challenges to the ballots of
Mosher and Nedoroscik because they were employed in
unit positions; and, the parties agreed that Lantz and
Mello were also eligible voters. The Regional Director
also stated that the parties further agreed that Keller,
Wesson, and Zack were not eligible voters.
Additionally, the Regional Director determined that
the two “void” ballots should be counted as “No” votes.5
Following a hearing on the Employer’s objections and
the 14 remaining challenges, the judge, in his Decision
on Objections and Challenges, recommended overruling
the Employer’s objections in their entirety. The judge
further recommended sustaining the challenges to the

3 In addition, two ballots were marked as “void” because they had
the word “No” written in both the “Yes” and “No” boxes on the ballots.
4 The Petitioner later filed a Motion to Reconsider and Amend Re-
port on Challenged Ballots on the grounds that, after the Petitioner had
withdrawn its challenges to the ballots of Pilat and Hall, it discovered
evidence that they possessed supervisory authority. The Regional
Director granted this motion on May 4. Thus, the eligibility of Hall and
Pilat was considered at the hearing.
5 In one of its objections (Objection 16), the Employer alleges that
Board officials’ refusal to count these ballots as “No” votes was im-
proper. Although the Regional Director determined that the ballots
should, in fact, be counted as “No” votes, the Employer’s objection was
apparently still outstanding, and it was therefore considered at the hear-
ing.
ST. VINCENT HOSPITAL, LLC 587
ballots of Aubin, Cormier, Goding, Lidonde, Marcucci,
Rubio, and Zaleski; and, he recommended overruling the
challenges to the ballots of Bath, Bernard, Hall, Jones,
Ohman, Pilat, and Randall.
Both the Employer and the Petitioner filed with the
Board timely exceptions to the judge’s Decision on Ob-
jections and Challenges. The Employer excepts to the
judge’s recommendation to overrule its Objections 8–15,
17–18, 22, and 25,6 and to the judge’s recommendation
to sustain the challenge to the ballot of Marcucci. The
Petitioner excepts to the judge’s recommendation to sus-
tain the challenge to the ballot of Goding and overrule
the challenges to the ballots of Bernard, Hall, Ohman,
and Pilat.
For the reasons stated by the judge, we agree with the
judge’s recommendation to overrule Objections 8–15,7
17–18, 22, and 25, and we therefore adopt his recom-
mendation to overrule the Employer’s objections in their
entirety.8 The dissent asserts that the presence of two

6 In brief, these objections variously allege that the Petitioner im-
properly used employees’ photographs in its campaign materials with-
out their permission; that the Board agents engaged in misconduct and
conducted the election in a lax and inattentive manner; that the method
for identifying voters was inadequate; that certain eligible voters were
disenfranchised; and that improper communications occurred between
Petitioner observers and voters during the election.
The Employer also excepts generally to the judge’s recommendation
to overrule “all” of its objections. However, the Employer does not
specifically except to the judge’s recommendation to overrule Objec-
tions 1–7, 16, 19–21, and 23–24—as it does with respect to Objections
8–15, 17–18, 22, and 25—nor does it discuss these objections in its
exceptions brief. Thus, in these circumstances, we find that the Em-
ployer has not properly excepted to the judge’s recommendation to
overrule Objections 1–7, 16, 19–21, and 23–24.
7 In adopting the judge’s recommendation to overrule Objection 8—
which alleges that the Petitioner improperly used certain employees’
photographs in its campaign materials without their permission—we
rely only upon the credited testimony of Petitioner representative Kath-
leen Keller. Keller testified that, prior to taking the photographs of the
employees at issue, she explained to the employees that the photo-
graphs would be used in preelection campaign materials, and the em-
ployees then agreed to have their photographs taken. The judge found,
and we agree, that this testimony establishes that the Petitioner used the
photographs with the express permission of these employees, and thus,
its use of the photographs was not objectionable.
Accordingly, we find it unnecessary to rely upon the judge’s addi-
tional finding, based on Hollywood Ceramics, 140 NLRB 221 (1962),
that the Petitioner’s use of the photographs did not constitute a “sub-
stantial departure from the truth” and therefore did not constitute an
objectionable misrepresentation. Member Liebman further observes
that Hollywood Ceramics, supra, was expressly overruled in Midland
National Life Insurance, 263 NLRB 127 (1982). Thus, in her view, the
judge erred in analyzing this issue under Hollywood Ceramics.
8 In the absence of exceptions, we adopt, pro forma, the judge’s rec-
ommendation to overrule the Employer’s remaining objections—i.e.,
Objections 1–7, 16, 19–21, and 23–24.
In adopting the judge’s recommendation to overrule Objection 16—
which alleges that Board officials improperly refused to count the two
“void” ballots as “No” votes—we affirm the Regional Director’s
unidentified employees in the voting booth at the same
time compromised the integrity of the election because it
impugned the secrecy of the ballots. Although this inci-
dent may not have represented an ideal election condi-
tion, we disagree that it compromised the integrity of the
election. A witness for the Union testified that the Board
agent stopped one of the two employees from going into
the booth with the other employee before they even got
into the booth. A witness for the Employer testified that
the two employees did go into the booth together but the
Board agent separated them when this was brought to his
attention. The judge did not resolve this conflict in tes-
timony. However, even if the two employees at issue
were in the voting booth at the same time, there is no
evidence that they communicated or that either observed
how the other was marking his or her ballot. In fact,
there is no evidence that the two employees had even
marked their ballots while they were in the voting booth
together. Thus, the evidence in the record fails to estab-
lish that the secrecy of the ballots was impugned as a
result of the employees’ simultaneous presence in the
voting booth. In this regard, this case is factually distin-
guishable from Machinery Overhaul Co., 115 NLRB
1787 (1956), cited by the dissent, where the evidence
showed that the two employees who were in the voting
booth at the same time “each observed how the other
marked his ballot.” Id. at fn. 2. Accordingly, we find
that the Employer, “upon whom the burden of proof
rested,” NLRB v. Mattison Machine Works, 356 U.S.
123, 124 (1961), failed to demonstrate that objectionable
conduct occurred.
Like our colleague, we recognize that ballot secrecy is
an integral component of a fair election that must be
safeguarded. However, there is not a “per se rule that
representation elections must be set aside following any
procedural irregularity.” Rochester Joint Board v. NLRB,
896 F.2d 24, 27 (2d. Cir. 1990). Here, all the record
shows is that two people were in the voting booth at the
same time. Absent any further showing, we are unwill-
ing to presume that ballot secrecy was compromised.
We further agree with the judge’s recommendation to
sustain the challenges to the ballots of Marcucci and
Goding and to overrule the challenges to the ballots of
Hall, Ohman, and Pilat.9 Thus, we find that the ballots of
Hall, Ohman, and Pilat should be opened and counted.

postobjection determination that these ballots should indeed be counted
as “No” votes.
9 In the absence of exceptions, we adopt, pro forma, the judge’s rec-
ommendation to sustain the challenges to the ballots of Aubin, Cormier,
Lidonde, Rubio, and Zaleski, and to overrule the challenges to the
ballots of Bath, Jones, and Randall; thus, we find that the ballots of
Bath, Jones, and Randall should be opened and counted. Additionally,
in accord with the parties’ prehearing resolution of several of the ballot
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD588
However, for the reasons set forth below, we disagree
with the judge’s recommendation to overrule the chal-
lenge to the ballot of Bernard. Accordingly, we reverse
the judge and sustain the challenge to her ballot.
Analysis
Brenda Bernard is a department secretary at the Em-
ployer’s 10 Washington Square facility. Although the
Agreement lists “unit secretaries” as an eligible classifi-
cation—and this ostensibly includes Bernard’s job classi-
fication—the Petitioner challenged Bernard’s ballot on
the grounds that the Agreement expressly includes only
employees who are employed in eligible classifications
at the Medical Center and Vernon Hill facilities, and it
does not include employees employed at 10 Washington
Square.
The judge—apparently applying the Board’s commu-
nity-of-interest test—found that, even though Bernard
was employed at a facility not listed in the Agreement,
she should nonetheless be included in the unit because
she was employed in a covered classification and she
worked across the street from, and in the course of her
duties sometimes traveled to, the Medical Center facility.
The judge further noted that employees who worked at
the 10 Washington Square facility are able to park in the
same parking lot used by the employees who work at the
Medical Center and that the 10 Washington Square facil-
ity operates under the same procedures and labor rela-
tions policies as does the Medical Center and Vernon
Hills facilities. On these bases, the judge implicitly found
that Bernard shared a sufficient community of interest
with the unit employees at these facilities to warrant her
inclusion in the unit. In so finding, the judge noted that,
prior to entering into the Agreement, the Employer had
proposed including the department secretaries employed
at 10 and 20 Washington Square in the unit.
For all of these reasons, the judge recommended that
the challenge to Bernard’s ballot be overruled and that
her ballot be opened and counted.
In excepting to the judge’s recommendation, the Peti-
tioner contends that the unit description in the Agreement
does not include employees employed at the 10 Wash-
ington Square location and that the challenge to Ber-
nard’s ballot should therefore be sustained. We find
merit in the Petitioner’s exception.
The Board applies the three-part test set forth in Cae-
sar’s Tahoe, 337 NLRB 1096 (2002), to determine
whether a challenged voter is properly included in a

challenges, we find that the challenges to the ballots of Keller, Wesson,
and Zack should be sustained, and that the ballots of Lantz, Mello,
Mosher, and Nedoroscik should be overruled and their ballots opened
and counted.
stipulated bargaining unit. Pursuant to this test, the
Board must first determine whether the stipulation is
ambiguous. If the objective intent of the parties is ex-
pressed in clear and unambiguous terms in the stipula-
tion, the Board simply enforces the agreement. If, how-
ever, the stipulation is ambiguous, the Board must seek
to determine the parties’ intent through normal methods
of contract interpretation, including the examination of
extrinsic evidence. If the parties’ intent still cannot be
discerned, then the Board determines the eligibility of the
challenged voter by employing its community-of-interest
test. Id. at 1097.
Applying the first prong of the Caesar’s Tahoe test
here, we note that the stipulated unit description in the
parties’ Agreement unambiguously includes only those
employees working in the covered classifications at the
Medical Center and Vernon Hills facilities; it does not
include employees working at the 10 Washington Square
facility, where Bernard is employed. Thus, regardless of
the fact that Bernard is employed as a secretary, the in-
tent of the parties that employees working at the 10
Washington Square facility be excluded from the unit is
unambiguously manifested in the stipulated unit descrip-
tion. See Northwest Community Hospital, 331 NLRB
307 (2000) (The Board will find that the parties have “a
clear intent to include those classifications matching the
description and a clear intent to exclude those classifica-
tions not matching the stipulated unit description.”).
In light of the parties’ clear and unambiguous intent to
exclude those employees, the judge erred in relying upon
extrinsic evidence of the Employer’s pre-Agreement
proposal to include department secretaries at 10 Wash-
ington Square in the unit, and in applying the Board’s
traditional community-of-interest test, to reach a finding
that Bernard should be included in the unit. See Cae-
sar’s Tahoe, supra. Accordingly, we reverse the judge
and sustain the challenge to Bernard’s ballot. See, e.g., S
& I Transportation, Inc., 306 NLRB 865 (1992) (sustain-
ing the challenge to the ballot of an employee who
worked in a covered classification on the grounds that he
was excluded from the unit because he worked at a dif-
ferent facility from that described in the unit descrip-
tion.).
DIRECTION
IT IS DIRECTED that the Regional Director shall, within
14 days from the date of this Decision and Direction,
count the two “void” ballots as “No” votes; open and
count the ballots of Ife Bath, Lisa Hall, Yvonne Jones,
Jane Lantz, Lynne Mello, Donna Mosher, Jennifer Ne-
doroscik, Roberta Ohman, Kim Pilat, and Ellen Randall;
prepare and serve on the parties a revised tally of ballots;
and issue the appropriate certification.
ST. VINCENT HOSPITAL, LLC 589
CHAIRMAN BATTISTA, dissenting in part.
Contrary to the judge and my colleagues, I find condi-
tional merit in the Employer’s objections insofar as they
allege that the integrity of the election was compromised.
My colleagues assume arguendo that two employees
were permitted in a voting booth at the same time. They
nonetheless uphold the election. I disagree. A principal
hallmark of a Board election is the requirement for a se-
cret ballot election. Obviously, such secrecy is compro-
mised if two or more employees are in the voting booth
together.1 If the secrecy affects a determinative number
of ballots, the election will be set aside.2
My colleagues would not set the election aside unless
it were shown that the employees communicated with
each other or that each employee observed how the other
marked his/her ballot. I disagree with that test. The
whole point of having a voting booth is to give an abso-
lute assurance to each employee that there is no opportu-
nity for his/her marked ballot to be seen by anyone else.
Obviously, if two employees are in the same small booth
together, there can be no such assurance. I would insist
upon absolute secrecy in our secret ballot elections.
Accordingly, I would remand the case to the Region
to: open and count the ballots of Ife Bath, Lisa Hall,
Yvonne Jones, Jane Lantz, Lynne Mello, Donna Mosher,
Jennifer Nedoroscik, Roberta Ohman, Kim Pilat and
Ellen Randall; count the two “void” ballots as “No”
votes; and prepare and serve on the parties a revised tally
of ballots. If that revised tally of ballots shows that the
number of compromised votes was determinative, I
would set aside the election.
In all other respects, I agree.
Eryn Doherty, Esq., counsel for the Regional Office.
Bart Sisk, Esq. and Todd Photopulos, Esq. (Butler, Snow,
O’Mara, Stevens & Cannada, PLLC), counsel for the Em-
ployer.
Warren Pyle, Esq. and Catherine Highet, Esq. (Pyle, Rome,
Lichten and Ehrenberg, P.C.), counsel for the Petitioner.
DECISION ON OBJECTIONS AND CHALLENGES
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on May 4 and 5, 2004,1 in Boston, Massachu-
setts, and on June 15, 16, and 17 in Worcester, Massachusetts.
The hearing addressed numerous challenges and objections to
the election conducted on February 27.
I. BACKGROUND
On January 21, Saint Vincent Hospital, LLC (the Employer)
and United Food and Commercial Workers International Un-

1 See Machinery Overhaul Co., 115 NLRB 1787 (1956).
2 Id.
1 All dates referred to herein relate to the year 2004, unless otherwise
stated.
ion, Local 1445, AFL–CIO, (the Petitioner and/or the Union)
entered into a Stipulated Election Agreement, herein called the
Agreement, providing for an election to be conducted on Feb-
ruary 27 at four time periods, three of which, from 6 to 9 a.m.,
2 to 5 p.m., and from 10 p.m. to 12:00 midnight, were at 20
Worcester Center Boulevard, the Employer’s principal location,
and referred to herein, at times, as the Medical Center, and one
session, from 11 a.m. to 1 p.m., at 25 Winthrop Street, gener-
ally referred to as the Vernon Hills location, both located in
Worcester, Massachusetts. As to the appropriate collective-
bargaining unit, the Agreement provides that the unit shall in-
clude:
All full time and regular part time nonprofessional employees
and those per diem and casual nonprofessional employees
who meet the eligibility standard described under “payroll pe-
riod of eligibility”2 who are employed by Saint Vincent Hos-
pital, LLC at its facilities at 20 Worcester Center Boulevard
and 25 Winthrop Street, Worcester, Massachusetts, in the
classifications listed below:
INCLUDING:
Anesthesia technicians
Administrative department secretaries (except Information
Systems Dept. Secretary)
Building services aides (Housekeeping)
Buyers and senior buyers
Call center representatives
CATH lab transport aides
Clerk/receptionists
Concierges
Critical care technician assistants (CCT)
Data analysts (QA/PI/QM analysts)
Dieners
Discharge liaisons
EKG technicians
Endoscopy technicians
ER materials supply coordinators
ER billers
General clerks (Medical photography)
Imaging assistants
Inventory clerks
Inventory representatives
Library assistants
Mailroom group leaders
Medical assistants
Medical staff services coordinator
Mental health assistants
Nursing office coordinator
Nursing assistants (surgical observation)

2 The Agreement, under the title “Payroll Period for Eligibility-The
Period Ending” states:
11:59 p.m. Saturday January 17, 2004. Also eligible are per diem
and casual employees in the classifications included in the Appropriate
Bargaining Unit who have worked a minimum of 120 hours in either of
the two consecutive 13-week periods ending 11:59 p.m. Saturday Janu-
ary 17, 2004.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD590
Office coordinators (except public relations office coordina-
tor)
OR aides
OR billers
OR inventory representatives
OR scheduler/unit secretaries
OR scheduling coordinators
Orthopedic technicians
Patient Care Assistants (PCA)
Patient observer assistants
Patient transporters
Photo lab assistants
Pulmonary technicians
Radiology information systems (RIS) assistants
Receivers (Materials management)
Residency program assistants
Scheduling coordinators
Sterile processing department (SPD) aides
Storekeepers (Housekeeping dept.)
Trauma registrar
Unit secretaries
Volunteer assistants
Waste handlers
Excluding: all other employees, managers, professional em-
ployees, technical employees, skilled maintenance employees,
business office clerical employees, guards and supervisors as
defined in the National Labor Relations Act.
Throughout this decision, the above shall be referred to as
the unit. On the same day, the parties also entered into a stipu-
lation providing that the following classifications are among
those excluded from the appropriate bargaining unit, referred to
herein as the excluded classifications:
Administrative Assistant (President’s Office), Audiologist,
Lead Anesthesia Tech, Audiovisual Coordinator, Behavioral
Counselor, Bio Med Tech III, Call Center Rep Lead, Cardiac
Arrhythmia Tech, Cardiovascular Tech, Case Cart Tech, Case
Manager Psych, Childbirth Educator, Concierge Voc Student,
Dispatch, Dosimetrist, Echo Tech, Education Coordinator,
EEG Tech, EKG Tech Group Leader, Electrician ER Mental
Health Clinician, Executive Assistant (President’s Office),
Exercise Physiologist, HR Representative, HR Specialist, HR
Assistant, All Information Systems Department Employees,
Invasive Cardio Materials Tech, All LPNs, Maintenance
Tech, Maintenance Tech Lead, Mammography Tech, Medi-
cal Residency Program Coordinator, Perfusionist, Plumber
Lead, Polysomnography Tech, All other Medical Records
Department Employees, MRI Tech, Occupational Therapist,
Certified Occupational Therapy Assistant (COTA), OR Air
Lead, OR Materials Rep Lead, ORSOS Coordinator, Pastoral
Care Dept, Patient Accounting Department, Patient-Guest Re-
lations, Payroll Clerk, PCA Voc Student, Pharmacy Inventory
Clerk, Pharmacist, Clinical Research Pharmacist, Pharmacy
Inventory Coordinator, Pharmacy Tech Certified, Pharmacy
Tech Non-Certified, Physical Therapist, Physical Therapy
Assistant (PT Assistant), Public Relations Coordinator, Radia-
tion Safety Specialist, Rad-Tech Multi Modality, Radiation
Therapy Tech, Respiratory Tech/Therapist, RIS App Special-
ist, Risk Specialist, Site Service Team Leader, Social Worker
MSW, Social Worker BSW, Spec Pro/CATSCAN Tech,
Surgical Pathology Assistant, Surgical Tech, Surgical Tech
Lead, All Security Dept Employees, Speech Therapist, SPD
Tech Cert, SPD Tech Non-Cert, Telecom Operators, Transla-
tors, Ultra-Sound Tech, Ultra-Sound Tech SR, Vascular Tech,
Vascular Tech SR, All Morrison’s Employees, All
ARAMAK/Service Master Employees, All Path Lab/Lab
Corp Employees.
At the election conducted on February 27, the tally of ballots
was:
Approximate number of eligible voters 485
Void ballots 2
Votes cast for the Petitioner 218
Votes cast against participating labor organization 207
Valid votes counted 425
Challenged ballots 21
Valid votes plus challenged ballots 446
On March 5, the Employer and the Petitioner3 each filed timely
objections to the conduct of the election and conduct affecting
the results of the election. On April 26, the Regional Director
issued a notice of hearing on report on challenges and objec-
tions wherein she resolved a number of the challenged ballots
pursuant to agreement of the parties.4 Aside from the chal-
lenges to Hall and Pilat, the Regional Director stated that the
Petitioner withdrew its challenges to Donna Mosher and Jenni-
fer Nedoroscik as the evidence establishes that they were em-
ployed in unit positions, and the parties agreed that challenged
voters Jane Lantz and Lynne Mello worked in positions de-
scribed in the unit and were eligible voters, and therefore
Mosher, Nedoroscik, Lantz, and Mello’s ballots should be
opened and counted. The parties further agreed with the
Board’s challenges to the ballots of Alan Wesson and Kathy
Zack, as they were not eligible voters as described in the
Agreement, and that Erin Keller was promoted to a position
outside the bargaining unit, so she is also an ineligible voter.
The challenged voters remaining at the commencement of the
hearing are: Karla Aubin, Ife Bath, Brenda Bernard, Michelle
Cormier, Linda Goding, Lisa Hall, Yvonne Jones, Elizabeth
Lidonde, Melissa Marcucci, Roberta Ohman, Kim Pilat, Ellen
Randall, Jose Rubio, and Michelle Zaleski. In addition, two of
the Employer’s Objections are really in the nature of challenged
ballots. Employer’s Objection 13 refers to voter Marcucci, who

3 In his brief, counsel for the Petitioner stated that as he had offered
no evidence in support of the Petitioner’s objections, “they may be
dismissed or regarded as withdrawn.” I construe this as a motion to
withdraw the Petitioner’s objections, which motion is granted.
4 In this report she found, inter alia, that Lisa Hall and Kim Pilat
were eligible voters as the Petitioner withdrew its challenge to their
ballots as the evidence established that they were employed in positions
included in the unit as described by the Agreement. However, at the
commencement of the hearing herein, Petitioner filed a motion to re-
consider and amend report on challenged ballots of Lisa Hall and Kim
Pilat on the ground that after initially notifying the Regional Director
that it would withdraw its challenges to Hall and Pilat, the Petitioner
had discovered evidence that they possessed supervisory authority. The
Regional Director granted this motion on May 4.
ST. VINCENT HOSPITAL, LLC 591
came to vote and was told that her name had already been
checked off by the observers. After insisting that she had not
previously voted, she was allowed to vote a challenged ballot.
In addition, two ballots were declared to be void ballots be-
cause each one had the words “NO” written in both the “YES”
and “NO” box. This is also Employer’s Objection 16, but it will
be discussed separately herein.
The Regional Director’s notice of hearing concluded by or-
dering that a report be prepared and served upon the Board
resolving questions of credibility and containing findings of
fact and recommendations as to the disposition of the issues.
II. THE VOID BALLOTS
The Regional Director determined that two ballots, each with
the words “NO” written in the “YES” and “NO” box of the
ballots were void ballots. The Employer’s Objection 16 chal-
lenges this determination. In Horton Automatics, 286 NLRB
1413 (1987), the ballot contained the word “NON” extending
across both the “yes” and “no” box. The Regional Director
found it to be a void ballot because it was unclear whether the
voter intended to vote against the union or was rejecting voting
entirely. The Board disagreed, saying that the ballot indicated
that the voter’s preference was clearly to vote against union
representation. In Pacific Grain Products, Inc., 309 NLRB 690
at fn. 3 (1992), the Board stated: “We find that the Board agent
erred by ruling a ballot void that was marked ‘no’ in both the
‘Yes’ and ‘No’ boxes. The Employer correctly maintains that
such a ballot clearly indicates the voter’s intent to cast a vote
against the Petitioner.” In Wackenhut Corp., 666 F.2d 464,
467–468 (11th Cir. 1982), a situation identical to the present
situation, the Court stated: “It would be within the Board’s
discretion to adopt a policy of rejecting any ballot not marked
in precise conformity with its instructions . . . However, the
Board has rejected such a rigid rule in favor of counting irregu-
larly marked ballots whenever the intent of the voter is clearly
apparent.” [citations omitted] In conclusion, the Court stated:
“The intent of the voter here is free from doubt. In response to a
question ‘Do you wish to be represented for purposes of collec-
tive bargaining . . .?’ no clearer response could be given than to
write ‘no’ twice on the ballot.” I similarly find that the intent of
these two ballots is clear, that the voters intended to vote
against union representation. I therefore recommend that these
two ballots be counted as “no” votes.
III. THE CHALLENGE BALLOTS
Melissa Marcucci was challenged by the Board agent be-
cause her name had already been checked off by both observ-
ers. Marcucci is employed by the Employer as an RIS assistant,
an eligible category. She normally works from 1 p.m. to 9 p.m.,
but on the day of the election she worked the first shift, from 9
a.m. to 5 p.m., to cover for a fellow employee, Elaine Manzi.
She testified that she arrived late for work that morning, at
about 9:15 a.m., and the Employer’s records show that she
swiped her parking lot badge and entered the Employer’s park-
ing lot that morning at 9:12 a.m. She went to vote at the Medi-
cal Center at about 2:30 p.m. and was on line to vote between
two other employees, Nancy Adams and Sharon Hutchison.
She testified that after Hutchison voted, she was “. . . standing
there for a couple of minutes and I said, Do you want my
name? And they said, Yes. So I gave them my name.” After
giving her name, she was told that she had already voted that
morning, that her name had been checked off by both observ-
ers, and she was shown the list where her name had previously
been checked off. She testified that she had not previously
voted and when she insisted on voting, she voted a challenged
ballot.
Adams testified that she, Hutchison, and Marcucci went to
vote at the same time. Adams gave her name, was given a bal-
lot and voted. When she came out of the voting booth, she
heard Marcucci arguing with somebody who had told her that
she had already voted, while Marcucci insisted that she hadn’t
previously voted, and she insisted on voting. When Adams
asked her what the problem was, Marcucci told her, “Nancy,
they’re saying that I was here to vote. I wasn’t here to vote.”
The Board agent then told Adams that since she had voted, she
would have to leave, and she walked out of the voting area.
Susan Thibeault was the Employer’s observer at the Vernon
Hills voting period from 11 a.m. to 1 p.m. She testified that
during this voting period, approximately 30 employees voted.
Although she is not familiar with Marcucci, and she cannot
recollect all 30 names of employees who voted at that session:
“I did not hear that name [Marcucci] announced.”
In Monfort, Inc., 318 NLRB 209 (1995), which involved an
election with a unit of approximately 1500 voters, four voters
who appeared at the polls to vote were told that they could not
vote because their names had already been checked off the list,
and, like Marcucci, they voted challenged ballots. The Board
there sustained the challenges to these ballots, even though the
hearing officer credited the four individuals that they had not
previously voted, nor had they given their employee identifica-
tion card to any one else. The Board sustained the challenges
because the election “. . . was conducted in accordance with the
Board’s practice” [the observers from each side checked off the
names of the voters], the voters “showed employee identifica-
tion cards with their photographs and printed name to both
observers” and “neither party attempted at the hearing to offer
evidence that the names of these four voters were checked off
the Excelsior list by mistake or inadvertence.” The Board con-
cluded:
Under these circumstances, to overrule these challenges
would have the effect of undermining the role of the observers
in the election, as well as the Board’s established procedures
for the conduct of election. Because the observers for both
parties agreed, by checking the four names off the Excelsior
list, that these employees had previously voted in the election,
we will not, on the basis of the affected employees’ testimony
alone, disturb this agreement.
There are a number of differences between the instant matter
and Monfort. In the instant matter, the unit is about one-third
the size of the Monfort unit, and the observers asked for the
employees’ Employer identification only if they did not know,
or recognize the employees. In addition, in the instant matter
the Employer in its objections, attacks the Board agents’ al-
leged inattentiveness which objection, as will be discussed
more fully below, I reject. I found Marcucci to be only a fairly
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD592
credible witness, whose testimony was colored by her anger at
the Board agents for making her vote a challenged ballot. For
example, I find it highly unlikely that with four observers and
two Board agents present she stood for a few minutes waiting
to get a ballot, while nobody asked her for her name, as she
testified. This testimony is further refuted by Adams’ testimony
that after she voted, she saw Marcucci arguing with the Board
agent. Although I do not lightly disenfranchise an eligible
voter, because I found Marcucci’s testimony not entirely credi-
ble, I see no reason to vary from the principals enunciated in
Monfort, and sustain the challenge to Marcucci’s ballot.
Karla Aubin began her employment with the Employer in
1996 as a part time employee in patient care. She went on a
leave of absence on February 20, 2000. By letter dated Febru-
ary 23, the Employer wrote her, inter alia:
During an audit of employees on Leave of Absence
placed on inactive status, I noticed that you were still
listed in the Payroll System. You have been on leave of
absence since February 23, 2000 and have not returned to
work in any capacity. If my understanding is incorrect,
please let me know as soon as possible.
The maximum period for medical leave of absence is
12 months in any 12 month rolling period. In addition, our
Workers’ Compensation Third Party Administrator indi-
cated that you have filed a claim for permanent and total
disability. As such, your employment with St. Vincent
Hospital will be considered to have voluntarily terminated
effective today, February 23, 2004.
There is no record that Aubin responded to this letter. On the
same day, the Employer completed a personnel change form for
Aubin stating that she was terminated effective February 23. As
Aubin had not worked for the Employer for the four year period
preceding the election, and was terminated by the Employer
prior to the election for exceeding its 12-month leave of ab-
sence rule, I find that she was not an eligible voter and I sustain
the challenge to her ballot.
Jose Rubio began his employment as a part-time employee
with the Employer in 2001 in the housekeeping department.
Rubio began a medical leave of absence on July 3, 2002, and
never returned to work. By letter dated February 23, the Em-
ployer wrote to Rubio:
During an audit of employees on Leave of Absence
placed on Inactive Status, I noticed that you were still
listed in the Payroll System. You have been on leave of
absence since July 3, 2002 and have not returned to work
in any capacity. If my understanding is incorrect, please let
me know as soon as possible.
The maximum period for medical leave of absence is
12 months in any 12 month rolling period. In addition, our
Workmen’s Compensation Third Party Administrator in-
dicated that you filed a claim for benefits and were paid
for a closed period from 7/30/02–9/8/02. This agreement
was reached in June of 2003 and your claim is currently
closed. As such, your employment with St. Vincent Hospi-
tal will be voluntarily terminated effective today, February
23, 2004.
There is no record that Rubio responded to this letter. On the
same day, the Employer completed a personnel change form for
Rubio, stating that his last day of employment was July 3,
2003, and that he was terminated effective February 23 for:
“Failure to return from medical leave of absence. Claim
closed.” As Rubio had not worked for the Employer for a pe-
riod in excess of 18 months prior to the election, and was ter-
minated by the Employer prior to the election, I find that he
was not an eligible voter and sustain the challenge to his ballot.
In his brief, counsel for the Petitioner states that based upon
the evidence presented at the hearing, he agrees that Rubio and
Aubin were not eligible to vote as they had been terminated and
had no reasonable expectation of returning to work within a
reasonable time.
Elizabeth Lidonde was employed by the Employer as a unit
secretary beginning in 1998. She was a per diem employee,
meaning that she worked when she wanted to, but that she did
not have budgeted, guaranteed, or regularly scheduled hours.
Pursuant to the eligibility requirements of the Agreement, the
Employer compiled the hours that Lidonde worked for the two
13-week periods preceding January 17. From July 20 through
October 18, 2003, she worked 39.75 hours. For the period Oc-
tober 19, 2003, through January 17, 2004, she worked 31.25
hours. The last 2 days that she worked were November 14 and
December 24, 2003. The Employer’s payroll records, and
Oscadal’s testimony, establishes that she was a per diem em-
ployee. The Agreement provides that per diem employees must
work a minimum of 120 hours in either of the two consecutive
13-week periods prior to January 17 in order to be eligible to
vote. As Lidonde did not satisfy these criteria, I sustain the
challenge to her ballot.
Michelle Cormier was also a per diem employee. She was
hired in January 2002 as a nursing float. The similar computa-
tions for Cormier establish that for the 13-week period prior to
October 18, 2003, she worked 83.75 hours and in the following
13-week period ending on January 17, she worked 98.25 hours.
Her last days of employment prior to January 17 were January
2, 10, 13 and 15, each of which days she worked about 8 hours.
Because Cormier’s hours do not satisfy the Agreement’s crite-
ria, I sustain the challenge to her ballot as well.
Michelle Zaleski, who had been employed by the Employer
since 1995, was employed as a per diem patient care employee.
During the 13-week period prior to October 18, 2003, she
worked 32 hours, and during the subsequent 13-week period
ending on January 17, she worked 31.75 hours, the last 2 days
of which were January 9 and January 11. For the reasons stated
above regarding Lidonde and Cormier, I sustain the challenge
to her ballot.
In his brief, counsel for the Petitioner states that based upon
the evidence produced at the hearing, Lidonde, Cormier, and
Zaleski were not eligible to vote as they were per diem employ-
ees who did not satisfy the requirements set forth in the stipula-
tion.
Brenda Bernard is employed by the Employer as a depart-
ment secretary at its facility at 10 Washington Square in
Worcester. She was challenged by the Petitioner because they
believed that employees employed at the Employer’s 10 Wash-
ington Square facility were not eligible to vote. The Agreement
ST. VINCENT HOSPITAL, LLC 593
includes “unit secretaries,” presumably her job classification,
but refers only to the 20 Worcester Center Boulevard and the
25 Withrop Street addresses, not to 10 Washington Square.
Martin Oscadal, the Employer’s vice president of human re-
sources, testified about the Employer’s physical plant in
Worcester. The Medical Center at 20 Worcester Center Boule-
vard houses a vast majority of the eligible employees. In addi-
tion, the Employer performs services, and has employees at 10
Washington Square and 20 Washington Square, which are
across Bridge Street and are about 200 to 300 yards from the
Medical Center. Vernon Hills, about two miles from the Medi-
cal Center, comprises two buildings about two hundred feet
apart, which house a psych unit, an ambulatory clinic, radiation
oncology, a purchasing department, and a warehouse with
medical records. Certain employees in both of these buildings
were eligible to vote in the election. All of these facilities oper-
ate under the same procedures and labor relations policies that
Oscadal administers. He testified that there are between 6 and
10 employees at 10 Washington Square, of whom the two cleri-
cal employees, including Bernard, were the only eligible voters.
There was no testimony whether the other clerical employee at
that location voted. He didn’t believe that individuals employed
at 20 Washington Square, the finance, payroll and accounting
department employees, were eligible voters. The employees
employed at 10 Washington Square park at a parking lot behind
that building, or they can park in the Medical Center parking
lot. Bernard’s job requires her to spend some time at the Medi-
cal Center building. Further, Oscadal testified that he attended
the 2 days of meetings that resulted in the Agreement. During
these discussions, the Employer proposed that department sec-
retaries at 10 and 20 Washington Square be included in the
unit, “and there was discussion specifically about one position
in the Information Systems Department that is located at 20
Washington Square and the union wanted that position ex-
cluded. We ultimately did agree to exclude that position.”
Bernard was employed in a covered classification in a build-
ing across the street from the main building of the Medical
Center. Her work sometime brought her into the main building
and Oscadal’s testimony appears to conclude that the parties
agreed that eligible classifications employed at 10 Washington
Square would be eligible. I therefore overrule the challenge to
her ballot and recommend that her ballot be opened and
counted.
Roberta Ohman has been employed by the Employer as an
anesthesia technician, an included classification, for 18 years.
She is also a licensed practical nurse, herein called LPN, a job
classification specifically excluded by the Agreement. When
she began working for the Employer, LPN licensing was a re-
quirement for the job. Since that time, the Employer has not
required anesthesia technicians to be licensed and when anes-
thesia technicians left, they were replaced by nonlicensed em-
ployees so, at the present time, she is the only one of the five
anesthesia technicians who is an LPN. She performs the same
work as the other anesthesia technicians, except that as an LPN
she is licensed to administer medication by injecting it into the
intravenous bag while the patient is sleeping. Her identification
badge states: “LPN Anesthesia.” Her most recent job appraisal,
dated March 9, lists her job title as anesthesia technician. Oh-
man is paid at the LPN rate of pay, which in about July 2003
was $20.26 an hour. Even though the Employer eliminated the
need for LPN for this position after she was hired, they “grand-
fathered” her rate and classification, rather than reducing it.
The evidence establishes that Ohman is one of five anesthe-
sia technicians (an eligible category) employed by the Em-
ployer at the Medical Center. She performs the same work as
the other four, and the only difference between them is that as
she is an LPN she can administer medicine, although the record
does not establish how often she does so, and she is paid more
than the other anesthesia technicians because of her LPN status.
As she has a clear community of interest with the anesthesia
technicians, with whom she, apparently, spends all of her work
time, rather than with the Employer’s LPN employees, I rec-
ommend that the challenge to her ballot be overruled and that
her ballot be counted. Columbia Broadcasting System, 70
NLRB 1368, 1372 (1946).
Linda Goding has been employed by the Employer as a unit
secretary since February 2001. During her initial period of em-
ployment, she worked a regular 24-hour-a-week schedule. In
January 2003 she began a leave of absence that ended on De-
cember 15, 2003, when the Employer issued a personnel
change form for Goding stating that she was returning from a
leave of absence and scheduling her for two 8-hour shifts each
week on the night shift, effective that day, which is what she
requested. Her status code is listed as casual because the Em-
ployer classifies as casual all employees who are scheduled for
1–39 hours for a 2-week period. As it did with Cormier, Li-
dond, and Zaleski the Employer computed Goding’s hours
worked for the two 13-week periods preceding January 17. For
the first period she was on a leave of absence and did not work;
for the second 13-week period she worked 50 hours, all be-
tween December 31, 2003, and January 17, although she testi-
fied that she began her 16 hour a week schedule on January 5.
The Employer’s payroll records state that for the three 2-week
payroll periods beginning on January 17, Goding worked 19.25,
24.25, and 48 hours.
Although the Employer’s status code for Goding is “casual,”
in Board terms, beginning on either December 31, 2003, or
January 5, she returned to the Employer’s employ as a regular
part time employee working 16 hours (and subsequently 24) a
week. The determination of Goding’s eligibility therefore de-
pends upon whether I employ the Board’s terminology and find
her eligible as a regular part-time employee by the eligibility
date, or whether I employ the Employer’s terminology of a
“casual” employee, one working less than 20 hours a week and
find her ineligible since she didn’t satisfy the test set forth in
the Agreement. Two cases cited by counsel for the Employer
relate to this issue, Hotel Inter (Maui), 237 NLRB 906 (1978),
and National Public Radio, Inc., 328 NLRB 75 (1999). In these
cases, the Board stated that when it can discern the parties’
intent regarding the agreed upon bargaining unit, the Board will
respect that intent as long as it is not contrary to any statutory
provision or established Board policy. The eligibility provision
contained in the Agreement refers to “per diem and casual em-
ployees” as also being eligible if they are in any of the included
categories and satisfy the test set forth therein. Because per
diem and casual are two of the Employer’s established status
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD594
codes, and the term “per diem” is not commonly used in Board
matters, I find it likely that the parties’ intent was to use those
terms as the Employer, and its employees, understood them. As
that would not contravene any established Board policy, I find
that, as Goding was classified by the Employer as a casual em-
ployee, and as she did not satisfy the required number of hours
test set forth in the Agreement, she is an ineligible voter, and I
therefore recommend that the challenge to her ballot be sus-
tained.
Ellen Randall was employed by the Employer as an office
coordinator for the neurology department. She was challenged
by the Petitioner. The only grounds stated was “not in unit.”
Her office coordinator position is an eligible position pursuant
to the Agreement and the Petitioner has not proven otherwise.
Further, she testified that the other office coordinators voted
without challenge. I therefore recommend that the challenge to
her ballot be overruled, and that her ballot be counted.
Yvonne Jones and Ife Bath were challenged by the Petitioner
as supervisors. They are each housekeeping employees (an
included classification) who also work as “supervisors” or
“leadpersons” on alternate weekends, for which they receive an
additional $2 an hour. The regular supervisor of the department
is Linda Warren, who is employed on the first shift, Monday
through Friday. There is no other “supervisor” present during
the other shifts. The sign-in sheet states next to her name: “W/E
Suprv,” although Jones testified that she was never aware of
this designation and none of the employees refer to her in that
manner: “As far as I knew I was just called a lead person.”
Warren carries a beeper with the number 9372 during her shift;
Jones and Bath carry it on the weekend first shifts. There are
about 15 housekeeping employees present on their shifts on the
weekends. The other employees also carry beepers, but with a
different number. At times, when Jones is very busy, she will
give the 9372 beeper to another employee who was not as busy:
“I needed to get the floor done so the nurses could have the
room for the patients.” The housekeeping employees, or any-
body else, can contact her if they need assistance: “that’s the
known beeper throughout the hospital; if you need something
you call the 9372 beeper . . . A light’s out, a toilet needs to be
cleaned, a floor needs to be swept, a bed needs to be moved;
any number of things.” On weekends they wear the same uni-
form as the other housekeeping employees: “I work every-
where, I can be scrubbing and waxing a floor . . . and then
move down across the building . . . cleaning rooms; it’s what-
ever they have for that day.” When Warren leaves for the day,
she gives this beeper to Linda Dulmaine, who is referred to as
the second-shift supervisor. On the third shift, any of the house-
keeping employees can carry this beeper. It is this 9372 beeper
that Jones and Bath carry on alternate weekends that caused the
Petitioner to challenge them as supervisors. Jones and Bath
have no other indicia of supervisory authority as set forth in
Section 2(11) of the Act. Jones testified that when she receives
a call that some work needs to be performed, she usually does
the work herself: “If it’s more than I can handle I’ll call some-
body and they’ll come help me do it, but I do it for the most
part.” When she was asked if she was “assigning” the work to
the employees, she testified:
Oh no, I just call for help because that’s just too much for me
to do . . . I can get four calls in twenty minutes and somebody
needs a bed over in 22 and somebody needs a bed in 36, I
can’t split those both up . . . so I’ll just call Ed who’s doing
rubbish and he’ll go push the bed for me so I can get the bed
to the other side. Or I’ll call, you know, whoever pops in my
mind at the time I’ll page.
Jones was asked if she was responsible for reporting em-
ployee misconduct on the alternate weekends when she has the
beeper. She testified: “No, not really. If there’s somebody out
of line and I’m called from a nurse on the floor, I have to go
and call my supervisor [Warren] or Fran Spasaro [the manager]
or Glen Forcier [the director of housekeeping] and then they
deal with the situation.” She does not make any recommenda-
tions: “No, I just report what happened and they decide what
they’re going to do.” If an employee calls in sick while Jones is
present on the weekend, Jones calls Forcier, Spasar, or Warren
to find out what she should do, and they will make the decision
and call other people to come in to work. In addition, “I usu-
ally do the work. I take it on top of whatever I’m doing that
day.” If an employee asks her if he/she can leave early, Jones
meets them in the supply room and calls Spasaro.
Bath testified that she is a housekeeper and has been a week-
end team leader for 2 years: “I’m not a team lead every week-
end. Every other weekend I’m a [team lead]. The weekend in
between I’m just a housekeeper.” For the weekend team leader
work, she is paid $12.60 an hour, including the additional $2.
On the weekends, when Warren is not present, she “would
delegate whatever was left for them.” Certain of the house-
keepers have designated areas to cover. For the others, Warren
writes their assignments, leaves them in a box, and Bath gives
them to the employees. She carries the 9372 beeper on alternate
weekends. When she experiences situations involving em-
ployee misconduct on a weekend shift, she speaks to all those
involved in the incident, writes down what they say, and gives
the report to Warren or Forcier, without a recommendation. If
the situation demands immediate action, she calls Warren or
Spasaro to find out what they wanted her to do. If she is told
that a housekeeping employee is not properly performing
his/her work, Bath calls either Warren or Spasaro, “and ask
them what they want done about it.” Bath testified that about 2
years ago, a secretary beeped her and told her that a housekeep-
ing employee was involved in a heated argument with a pa-
tient’s daughter. She went to the third floor and saw the house-
keeping employee pacing the floor and cursing that nobody
could tell her how to do her job. Bath asked her to come into an
empty room with her to calm down, but she was unsuccessful
in getting her to calm down. When Bath saw the patient’s
daughter approaching, she asked the housekeeper to come
downstairs with her, in order to avoid an altercation between
the two. Bath then called Spasaro, told him what happened, and
Spasaro told her to send the employee home, which she did.
Sonia Rodriguez, who has been employed by the Employer
for 5 years as a CNA, testified that a few weeks before the elec-
tion, she asked Bath if she was going to vote in the Board elec-
tion, and she said that she wasn’t eligible because she had been
promoted to supervisor.
ST. VINCENT HOSPITAL, LLC 595
It has long been accepted Board law that the burden of prov-
ing supervisory status rests on the party asserting that such
status exists. Freeman Decorating Co., 330 NLRB 1143
(2000), citing Ohio Masonic Home, 295 NLRB 390, 393
(1989). Further, the party asserting such status must establish it
by a preponderance of the evidence. Bethany Medical Center,
328 NLRB 1094, 1103 (1999); Dean & Deluca New York, Inc.,
338 NLRB 1046 (2003). In attempting to establish the supervi-
sory status of Jones and Bath, the Petitioner relies solely upon
their ability to “assign” employees to specific jobs on the
weekends after learning through their 9372 beeper that a
housekeeping employee was needed somewhere in the hospital
to perform some work. Section 2(11) of the Act, in spelling out
the criteria of supervisory status, including, “assign . . . or re-
sponsibly direct them” contains an important caveat: “. . . if in
connection with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires the use of
independent judgment.” Further, an employee who substitutes
for a supervisor is considered to be a supervisor within the
meaning of the Act “only if the individual’s exercise of super-
visory authority is both regular and substantial.” Hexacomb
Corp., 313 NLRB 983, 984 (1994).
The dividing line between a supervisory employee and a
trusted and experienced employee is often difficult to discern.
In NLRB v. Grancare, Inc., 170 F.3d 662, 667 (7th Cir. 1999),
the court stated:
The concept of “independent judgment” under Section 2(11)
is, at its core, concerned with those who work at the margins
of supervisory authority. The Board must draw a line separat-
ing the lowest level of true supervisors- those who are part of
management’s team- from those valuable employees who are
just on the other side of the line. Those just on the other side
of the line are employees who exercise some authority but not
enough to be considered more than part of the regular work
force.
The credible testimony of Jones and Bath establishes that the
weekend assignments are prepared by Warren; however Bath
and Jones also receive messages on the 9372 beeper that a
housekeeping employee is needed to clean a room, a bathroom,
or move a bed. On those occasions, they perform the work
themselves or call whoever is nearest to the area involved, or is
the most obvious person to perform the work. In language that
would be appropriate for the instant matter, the Board in Car-
lisle Engineered Products, 330 NLRB 1359 (2000), in finding
that the challenged classification, processors, did not exercise
independent judgment in the assignment of work, stated: “the
processors’ exercise of this authority to assign work is simply
based on commonsense efficiency and job priorities set by the
Employer. We find that their assignment of work on this basis
is routine and insufficient to establish supervisory status.” Simi-
larly, in Cooper/T. Smith, Inc. v. NLRB, 177 F.3d 1259, 1265
(11th Cir. 1999), the court stated: “for an assignment function
to involve independent judgment, the putative supervisor must
select employees to perform specific tasks on the basis of a
judgment about the individual employee’s skills.” In Visiting
Nurses Services of Health Midwest, 338 NLRB 837, 839
(2003), the employer challenged IV Clinical Coordinator
O’Roark as a supervisor because she assigned patients needing
IV therapy to the field nurses. The administrative law judge
stated:
The Employer failed to demonstrate that O’Roark’s assign-
ment of case managers is anything other than routine in na-
ture. I cannot conclude that she actually exercises independent
judgment in making this assignment. Given the Employer’s
daily average patient load of 900, someone must direct traffic.
And such is O’Roark’s principal function but making these
assignments is essentially routine.
I find that the assignments that Jones and Bath make on al-
ternate weekends are routine in nature and do not require the
use of independent judgment. As they are not supervisors
within the meaning of the Act, I recommend that the challenges
to their ballots be overruled, and that their ballots be counted.
Kim Pilat and Lisa Hall are employed as office coordinators
in the nursing office, an eligible classification. They were chal-
lenged by the Petitioner as supervisors and Pilat testified pursu-
ant to a subpoena from the Petitioner. She has been employed
by the Employer for 19 years and works 4 weekdays, 7 a.m. to
4 p.m. Hall also works weekdays, so that one or both of them
are present on the day shift during the week; there is no week-
end coverage. Their supervisor is Donna Lacaba, the director of
nursing. Pilat testified that she and Hall do the scheduling for
37 PCAs (personal care assistants) and secretaries, two LPNs
and 30 RNs, as well as staff reports and typing. As for schedul-
ing:
Well half of these employees are per diem. That means they
work when they want to work and the other half are budgeted.
That means they are guaranteed a certain amount of hours
each week based on their budgeted hours. The budgeted ones
work every other weekend and every other holiday and the
per diem basically call us and tell us when they want to work.
If they need additional employees, they can ask the per diems
to work additional hours, they can call agencies that they use,
or they can ask the regular employees to work additional hours.
If overtime is needed, in determining who gets overtime hours:
Well, what we usually do is we can go back and look at their
payroll and see how many hours they have done for the week
already. I have all the floors’ master schedules. I can actually
look and see how many hours they are scheduled for that
week. We try to go by who signed up first because one of us
is there every day and we usually know who calls. Then we
try to do it fairly, but that’s basically how we do it.
In addition, in deciding who is scheduled for overtime hours,
which are voluntary, they look to who has worked the most
hours already for that week. She and Hall prepare and post the
work schedules every 4 weeks based upon the formula in the
staffing guidelines: “So, if there are 18 patients we know we
need three nurses and two PCAs.” The Employer has a master
staffing sheet and the managers fill in the sheet with their staff
and if there is going to be a vacancy, or “a hole” as described
by Pilat, the manager draws a line through that position, so that
Pilat and Hall know what positions need to be filled, and it is
their responsibility to decide who gets the assignments. In mak-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD596
ing this decision, the initial assignments go to employees who
would not be on overtime. As for the per diems:
They actually schedule what they want to work for the month.
They will call weekly or daily. They could call an hour before
the shift and actually say, do you need me for 7:00 to 3:00 or
3:00 to 11:00. There is no set time that they have to call by.
If an employee calls shortly before a scheduled shift to say that
he/she is unable to work that shift, they call somebody else to
cover the shift. If a “float” notifies her that he/she has to leave
work early, Pilat and Hall try to find somebody to cover for the
position. However, “if they have already said that they were
leaving, we can’t make them stay.” If she and Hall are unable
to cover the “holes” in the schedule, they need Lacaba’s ap-
proval before calling an agency for coverage.
Linda Wall, a secretary in the Employer’s same day surgery
department, testified that when she wanted overtime work, she
called either Pilat or Hall and they notified her if she had over-
time work and, if so, when, although she does not know who
actually decided on the assignments or what criteria were con-
sidered. Tammy Ceccarini, who is employed by the Employer
as a 24 hour flex PCA, testified that when she wanted overtime,
she called the nursing office, told them of her availability and, a
majority of the time, she was given overtime work. Marie Au-
date, employed by the Employer for 5 years as a PCA, testified
that she works a regular 40-hour shift, but when she wants
overtime work, she calls Pilat or Hall and tells them of her
availability, and usually gets the work. Oscadal identified two
job appraisals given to Pilat, one dated January 2003 and one
March 2004, both of which were received in evidence. Because
there are some differences is the “position purpose” referred to
in these appraisals, I have used the earlier one prepared prior to
the election. Under position purpose, it states:
Under minimal supervision, provides nurse managers sched-
uling and staffing support of varying degrees of complexity.
Assigns float staff as required by supplemental staffing re-
quests, staff competency and staff available. Adjusts float
schedules daily as dictated by staffing needs, competency
level required, and staffing guidelines.
Under reporting relationships and level of autonomy, the ap-
praisal states:
Generally establishes own work plans and priorities to assure
timely completion of assigned work in conformance with es-
tablished policies and standards. Issues lacking clear prece-
dent are reviewed with supervisor prior to taking action. Re-
ports directly to the Administrative Manager, Nursing Office.
At the time of the election, Pilat’s hourly rate was $17.21.
I find that the Petitioner has failed to satisfy its burden of es-
tablishing that Pilat and Hall are supervisors within the mean-
ing of the Act. I make this finding for a number of reasons.
Initially, I note that their job classification, office coordinator,
is an eligible category pursuant to the Agreement. In addition, I
find that there is a difference between “assign” as stated in
Section 2(11) of the Act and the work that is performed by Pilat
and Hall, scheduling, which, in their case, does not require the
exercise of independent judgment because it is performed
within established parameters. In Dean & Deluca New York,
Inc., supra at fn. 15, the Board stated: “An individual’s direc-
tion and scheduling of employees does not necessarily establish
that the individual is a statutory supervisor.” Quadrex Envi-
ronmental Co., 308 NLRB 101 (1992), involved the supervi-
sory status of “leads.” The Board stated:
With respect to making assignments, the leads follow a de-
tailed project plan that has been put together by management.
That plan provides a performance schedule and the leads as-
sign employees according to staffing needs that have already
been set by management to provide the skills needed for the
job . . . Under such circumstances, employees lack sufficient
discretion to be statutory supervisors. The Board has previ-
ously noted that when employees have special skills and man-
agement prepares a master schedule based on those skills, as-
signment of daily jobs amounts merely to routine implemen-
tation of orders.
I therefore recommend that the challenges to the ballots of Pilat
and Hall be overruled, and that their ballots be counted.
In conclusion, I recommend that the challenges to the ballots
of Marcucci, Aubin, Rubio, Lidonde, Cormier, Zaleski, and
Goding be sustained, and that the challenges to the ballots of
Bernard, Ohman, Randall, Jones, Bath, Pilat, and Hall be over-
ruled, and their ballots be opened and counted.
IV. THE OBJECTIONS
1. The Petitioner harassed, coerced, and intimidated eligible
employees, including escorting and/or accompanying eligible
voters to the polling place, entering and remaining in the voting
area to watch the employees voting and signaling to the Un-
ion’s observers to challenge the vote of certain employees.
As there is no evidence to support this objection, I recom-
mend that it be overruled.
2. The Petitioner promised and/or provided benefits, gifts,
and other items of value to eligible voters in order to influence
them to vote for the Union.
Karen Baker, who is employed by the Employer as a unit
secretary/PCA, an eligible classification, also served as the
Petitioner’s observer at the final voting period at the election.
She voted during the first voting period, at about 6:15 a.m. At
about 2, on the day of the election, she saw Kathleen Keller, an
international organizer for the Petitioner’s international union,
Region 1, who was wearing a jacket with the union name on it.
Baker told Keller that she liked the jacket and it had her daugh-
ter’s school colors. She told Keller: “I want your coat” and
Keller gave her the jacket, and she wore it for the last half hour
of her shift that day, but not while she was acting as an ob-
server at the election.
This objection clearly has no merit. It involves a used jacket
being given to one of the Petitioner’s observers, at her request.
An election will be overturned when the misconduct of the
union or its agents “reasonably tends to interfere with the em-
ployees’ free and uncoerced choice in the election” based upon
objective facts. NLRB v. Dickinson Press, Inc., 153 F.3d 282,
285 (6th Cir. 1998). This was an impromptu gift given to
Baker, at her request, without any promises of support for the
Petitioner required. It wasn’t necessary because she was an
ST. VINCENT HOSPITAL, LLC 597
observer for the Petitioner and, presumably, already supported
the Petitioner. I therefore recommend that this objection be
overruled.
3. The Petitioner threatened employees that, among other
things, they would be terminated, outsourced, or would other-
wise lose their jobs if the Petitioner lost the election.
As there is no evidence to support this objection, I recom-
mend that it be overruled.
4. The Petitioner engaged in objectionable conduct by dis-
criminatorily challenging the votes of employees solely upon
its belief that the voters supported the Employer in the election.
The Employer, in its brief, states that: “. . . it is clear that the
Union was engaged in a plan to systematically exclude those
employees that had expressed a lack of support for the Union
. . . the Union’s use of discriminatory challenges establishes
grounds for setting aside this election.” Approximately 485
employees were eligible to vote in the election; 446 actually
voted. Of these 21 were challenged, 10 by the Petitioner, 8 by
the Board, and 3 by the Employer. After the challenges were
“vetted” by the Region, 14 challenges remained, 6 by the Peti-
tioner, 6 by the Board and 2 by the Employer. As can be seen
by the discussion, supra, the only “weak” challenge was the
challenge of Randall. The challenges to the ballots of Jones and
Bath, and Pilat and Hall and Bernard were certainly arguable
even though I have overruled them and ordered that the ballots
be opened and counted. Out of a unit of almost five hundred
employees, ten challenges is not an excessive number of chal-
lenges, nor is there any evidence that any of the Petitioner’s
challenges were in bad faith, or was somehow meant to coerce
the other voters. I therefore recommend that this objection be
overruled.
5. The Petitioner offered to waive initiation fees for employ-
ees who signed authorization cards for the Petitioner, “thereby
buying endorsements and/or painting a false picture of em-
ployee support for the Union.”
Krystal Kupfer, who is employed by the Employer as a PCA,
attended a meeting held by the Petitioner in about early Janu-
ary. She testified that at this meeting, Keller told the employees
that since they were already employed by the Employer, they
would not have to pay an initiation fee if the Petitioner won the
election, but future employees would have to pay the fee. Kel-
ler testified that she told the Employer’s employers: “. . . those
of you who are here . . . this group of eligible voters, you won’t
pay an initiation fee.”
Keller impressed me as a savvy, bright woman who was
knowledgeable about the law on relevant subjects (such as the
waiver of initiation fees) and knew that any misstep would be
memorialized in objections. Her statements herein were clearly
permissible. De Jana Industries, 305 NLRB 294 (1991). In
NLRB v. VSA, Inc., 24 F.3d 588, 593 (4th Cir. 1994), the court
discussed the Supreme Court’s decision in NLRB v. Savair Mfg.
Co., 414 U.S. 270 (1973), the lead case on this subject:
Thus, the linchpin of Savair is the linkage between the offer to
waive the initiation fee and a pre-election commitment to
support the union. It is this linkage that constitutes the union’s
impermissible interference in the election, and allows the un-
ion “to buy endorsements and paint a false portrait” of em-
ployee sentiment. Id at 277 . . . No such impermissible inter-
ference by the union occurred here. Unlike Savair . . . the of-
fer to waive initiation fees here was not conditioned on a pre-
election commitment to support or vote for the Union. On the
contrary, everyone qualified for the waiver if the Union won
the election, even those who opposed the Union.
I recommend that this objection be overruled.
6. During the election the Board agents allowed the Peti-
tioner’s observers to engage in prolonged conversations with
voters waiting to cast ballots. These conversations took place in
the polling area and constituted campaigning by the Petitioner’s
observers.
Yvonne Jones, who was an observer for the Employer during
the first voting period, testified that the communications be-
tween voters and the Petitioner’s observers were limited to
comments about the weather and “ there were a few people that
had asked them to give them a call.” Ellen Randall testified that
one voter gave a piece of paper to the union observer, which
she presumed contained her telephone number, and said, Let
me know how things are going.” Susan Thibeault, who was an
observer for the Employer at the Vernon Hills voting, testified
that during the voting period, the Union observers were talking
about families, and she participated in these discussions. She
did not testify whether voters were present during these discus-
sions. Joan Brytowski, who was an observer for the Employer
at the 2 to 5 and the 10 p.m. to midnight voting periods testified
that at a preelection conference the Board agents instructed the
observers that if they recognized the voter, they should limit
any discussions to hello, or a casual greeting, but nothing else.
During the election, there was “light” or “casual” conversation
among all of the observers, but not about the election. She testi-
fied to a situation where a voter:
got into quite a detailed conversation with one of the union
representatives and kept asking well how do you think it’s go-
ing and didn’t get an answer but then she had suggested that if
she asked a question that they could answer with a yes or no.
So they asked if they thought it was going to rain or some
type of question like that some kind of irrelevant question . . .
at some point the Board member said she’s no allowed to an-
swer that and then they said if you voted to please leave the
room.
Linda Wall was an observer for the Union at the first and
second voting periods. She testified that at the preelection
meetings the Board agents told the observers that they could
say hello or good morning to the voters, but that they were not
to carry on any conversation. During the voting periods, when
there were no voters in the area, the observers engaged in gen-
eral conversation. Wieslawa Miller, a union observer at the
morning and afternoon voting period at the Medical Center,
testified that the only conversations with voters was, “Hi, how
are you? That’s it. There was no other conversation.” Diane
Crawford, a union observer at the afternoon session at the
Medical Center, testified that the Board agents told them that
normal conversations were fine, just no talking about the vote.
During the voting Sonia Rodriguez, a voter, asked her about her
son, who has a “medical situation.” She told Crawford to call
her, but Rodriguez said that she didn’t have her telephone num-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD598
ber, and Crawford gave Rodriguez a piece of paper with her
telephone number.
Even if I were to credit the Employer’s witnesses and disre-
gard the Union’s witnesses’ testimony, as the conversations
here were isolated comments or inquiries, and were being
monitored by the Board agents, I recommend that this objection
be overruled. Michem, Inc., 170 NLRB 362 (1968).
7. The Union used envelopes and postage meter stamps of
the Employer to mail union literature to eligible voters, thereby
creating the false impression that the Employer supported the
Union and creating the false impression that it was futile to
vote.
Shadrack Bryan, who is employed by the Employer as a
housekeeper at the Medical Center, an eligible classification,
testified that prior to the election he received a letter with the
Employer’s return address on the envelope. The postage meter
stamp lists Worcester, Massachusetts, and the cancellation
stamp states “Central Massachusetts” with a date of “February
25.” Inside this envelope was a letter dated February 21, 2004
addressed “Dear St. Vincent Co-worker” stating:
In anticipation of winning our union election on Friday, Feb-
ruary 27th, we have enclosed a contract proposal question-
naire for each of you to fill out and mail back. Your reply will
help us fight hardest for the things we all want most.
Enclosed was a questionnaire and a self addressed stamped
envelope with the Union’s address. Bryan doesn’t know who
mailed it to him, but after receiving it he reported it to his su-
pervisor. Emily Hardt, an organizer for Region 1 of the Interna-
tional, testified that on about February 21 the Union mailed out
the contract proposal questionnaires to the eligible voters, in
union envelopes with the Union’s postage meter from their
office in Dedham, Massachusetts. The Union never used the
Employer’s envelopes for any of its mailings, although she did
not personally place the questionnaires in the envelopes. Doug-
las Belanger, vice president and director of organizing for the
Union, testified that the Union never mailed any literature to
eligible voters in the Employer’s envelopes. He assisted in the
contract proposal questionnaire that was sent to eligible voters;
he participated in drafting the letter and ran some of the letters
through the Union’s postage meter. It was mailed about a week
prior to the election. The Union’s postage meter states their
principal office, Dedham, and has the Union’s postage meter
number, which is different than the postage meter number on
the envelope that Bryan received.
There is no evidence supporting the allegation that the Union
mailed the letter in question to Bryan. I can see no reason why
they would do so and note that the post mark on the letter is
February 25. I find it highly unlikely that a union would send a
letter to employees that had to be received on the following day
in order to be effective. Further, there is no evidence that
Bryan, apparently the only employee who received such a let-
ter, was deceived by the letter or had any reason to believe that
it was actually from the Employer. Obviously he was not de-
ceived, because he immediately showed it to his supervisor. I
therefore recommend that this objection be overruled.
8. The Union used photographs of the Employer’s employees
in their campaign literature without their permission.
Kupfer, who has been employed by the Employer for 3 years
as a PCA, testified that in early January she and fellow em-
ployee Nichole Hart went to a union meeting at the Hampton
Inn near the Medical Center. She went to the meeting to find
out what it was all about. At this meeting a representative of the
Union, apparently Keller, spoke about the benefits that the Un-
ion could get for them and what the Employer was doing to
convince them to vote against the Union, although by the con-
clusion of the meeting she had not yet made a decision on how
she would vote in the election: “At the end when we were on
our way out the door, they said we’re going to take a picture.
This is for a collage for the campaign after the election, that
shows everyone that went to the meetings.” They were not
instructed on how to pose for the picture, and they were not told
who the picture would be given to or whether it would be used
for any other purpose. She and Hart agreed to pose for the pic-
ture: “I didn’t see any harm in it.” On about February 24 or 25,
she received a call at home from Hart, who was at work, say-
ing, “You’ll never guess what’s going on.” Hart told her that
the Union had distributed glossy leaflets all over the hospital
containing pictures of 25 employees, including Kupfer and
Hart, all with their hands out and thumbs up. It states: “We
deserve the same respect and care as we give our patients. Join
us in voting YES for a better future.” The picture of Kupfer and
Hart was the one taken at the union meeting in early January.
Kupfer testified that she was angry because, “I didn’t give per-
mission for my picture to be used as this . . . And, coming out
like this and saying I’m voting yes, then, I have a problem with
that.” On cross-examination she was asked:
Q. but you didn’t express any objection to having your
picture taken for use in a collage after the election.
A. No. I didn’t think it was going to be used. I thought
it was going to be used for a collage, not for a brochure
saying that I’m voting yes.
+
When she got to work that day she received mixed reactions
to the pictures from other employees, some were for it, some
were against.
Hart likewise testified that at the conclusion of the Union
meeting she and Kupfer were asked to be in a Union picture: “It
was to be used as a collage, something that was to be used if the
Union won at the end of the election . . . I wasn’t told it was
going to be used as a campaign flyer.” On that basis they
agreed to have their pictures taken. On February 24 or 25, when
she saw the union leaflet, she and Kupfer told their supervisor
of what happened. They also prepared a response to the leaflet
that stated:
TO ALL UNION ELIGIBLE VOTERS:
THIS IS TO SHARE WITH YOU OUR PERSONAL EXPERIENCE.
AS WE CAME TO WORK TODAY . . . IMAGINE OUR SURPRISE AS
WE PUNCHED IN AND NOTICED OUR PICTURES IN A UNION
FLYER HANGING ON THE PUNCH CLOCK. THROUGHOUT THE
DAY THE FLYERS WERE FOUND IN BREAKROOMS, PASSED TO
EMPLOYEES AND EVEN UP ON ELEVATOR DOORS AND WALLS.
THESE FLYERS WERE WHERE EVERYONE, INCLUDING
VISITORS, COULD BE SEEN.
ST. VINCENT HOSPITAL, LLC 599
WE FEEL THAT WE HAVE BEEN EXPLOITED. VOTING IS
SUPPOSED TO BE ANONYMOUS AND THIS WAS DEFINITELY AN
INVASION OF OUR PRIVACY. THESE PICTURES WERE TAKEN
UNDER FALSE PRETENSES. WE WERE LIED TO AS TO WHAT THE
PICTURES WERE GOING TO BE USED FOR. SOME COLLAGE,
HUH?
WE ADMIT WE WENT TO THE UFCW INFORMATIONAL
MEETING, BUT IT WAS TO GATHER AS MUCH INFORMATION AS
POSSIBLE CONCERNING THE UPCOMING ELECTION. WE WENT
TO HEAR WHAT THE UNION WAS OFFERING AND TO BECOME
EDUCATED ABOUT OUR VOTING CHOICES.
OUR FEELINGS ARE VERY HURT AND THIS HAS CHANGED
THE WAY WE VIEW THE UFCW UNION. THE ONLY THING THE
UFCW HAS BROUGHT TO US IS FRUSTRATION,
EMBARRASSMENT AND DISAPPOINTMENT. WE ENCOURAGE
ALL VOTERS TO BEWARE OF THE UFCW’S UNETHICAL
BEHAVIOR. PLEASE VOTE NO.
Kupfer and Hart made 10 copies of this notice without signing
it or putting their names on it, and placed them in the same
locations where the Union’s leaflets were placed. Others, un-
known, made additional copies of this notice and distributed
them throughout the hospital so that eventually there were
about an equal number of these notices as there were union
leaflets.
Keller testified that the picture of Kupfer and Hart was taken
on February 10 at a regular union meeting at the Hampton Inn.
The purpose of the meeting was to answer any questions that
Kupfer, Hart and one other employee had: “toward the end of
the meeting . . . they said that this sounded like something that
they were very interested in . . .” Keller then told them:
. . . what we’re doing is we’re trying to put together like a
showcase flyer, meaning, you know, people that are support-
ing the Union, take their pictures, make it into a flyer, like a
collage, and then distribute it to your other co-workers inside
the hospital before the election, as a show of union support,
are you interested?
All three of them, Kathy, Crystal and Nicole said yes. I
said, well, the others are getting together, putting their
thumbs up and saying union yes, as we snap the picture.
And that’s what they did.
She gave the same explanation to all the other employees
whose picture was taken for the leaflet. Hardt, the union organ-
izer, testified that although she did not take the picture of
Kupfer and Hart, she took pictures of 10 to 15 other employees
and asked each one if she could take their picture for a union
flyer to be distributed at the hospital before the election ex-
pressing their support for the Union.
There is a clear credibility issue of what Kupfer and Hart
were told by Keller as to the purpose of the picture being taken.
While they testified that Keller told them that it was for a col-
lage to be used after the election, if the Union won the election,
Keller testified that she told them that the flyer was a collage
that would be distributed prior to the election to show their
support for the Union. Although Kupfer, Hart, and Keller ap-
peared to be equally credible witnesses, as there is a clear dif-
ference in their testimony, I credit Keller’s testimony as the
most reasonable under the circumstances. The situation oc-
curred at a union meeting. It is reasonable to assume that the
Union wanted to display as many employees as possible who
was interested in the Union in order to possibly influence other
employees. Whether the Union won or lost the election the
pictures would serve no valid purpose after the election. I find
it likely that Kupfer and Hart, two young women with no prior
union experience, were “caught in the moment” of the union
meeting and, without fully thinking it through, agreed to have
their picture taken, without any limitations. I therefore credit
Keller’s testimony and find that she told Kupfer and Hart that
the picture would be used prior to the election. However, even
if I credited Kupfer and Hart I would still come to the same
conclusion. I believe that this objection should be analyzed
under the principals in misrepresentation cases set forth in Hol-
lywood Ceramics Co., 140 NLRB 221 (1962). In the instant
matter only two of the twenty-five photographed employees
claimed to have been misled, not a “substantial departure from
the truth,” Hollywood Ceramics supra at 224. In addition, the
leaflet was distributed 2 to 3 days prior to the election, and
Kupfer and Hart (as well as others) distributed their rebuttal
throughout the hospital on the same day in about equal num-
bers. So, even if there had been a misrepresentation, it was
“amply rebutted.” NLRB v. Utell International, Inc., 750 F.2d
177, 180 (2d Cir. 1984). I therefore recommend that Objection
8 be overruled.
9. During the election the Board agents allowed the Union’s
observers to place telephone calls from the voting area while
the polls were open, and allowed the union observers to leave
the polling area for an undetermined period of time while wear-
ing their union observer badges and without being accompanied
by an Employer observer.
Brytowski, who was an Employer observer at the 2 to 5 and
10 to midnight voting periods at the Medical Center, testified
that there was a telephone in the back of the room where the
voting took place and on two occasions the Union observer
used the telephone. Prior to making the call, the observer told
the Board agent that she was going to call home, and the Board
agent told her that as long as she called home, she could use the
phone. In addition, on one occasion, the union observer left the
voting area by herself and went to the bathroom while still
wearing her observer badge and a union pin. Brytowski could
see her talking to some people, including Fradine John Baptiste,
a PCA employed by the Employer, although she could not hear
what was said. Linda Wall, who was a union observer at the
first session at the Medical Center and the next session at
Vernon Hills, testified that none of the observers used the tele-
phone at the first voting session at the Medical Center, but to-
ward the end of that session, while no voters were present to
vote, Miller, the other union observer, asked the Board agent
for permission to go to the bathroom and after receiving per-
mission, she went to the bathroom, leaving her observer badge
on the table when she left. Miller, who was the union observer
at the 6 to 9 a.m. and the 2 to 5 sessions at the Medical Center,
testified that during the first voting session she received per-
mission from the Board agent to go to the bathroom at a time
when there were no voters in the area. The Board agent told her
not to talk to anybody while she was out of the room. She left
her observer badge on the table when she left, and did not talk
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD600
to anybody while she was gone. During the afternoon voting
session Crawford received a telephone call on her cell phone
from her fiancé involving keys to a car; no voters were in the
area at the time. Baker, who was a union observer along with
Tammy Ceccarini at the 10 to midnight voting session, testified
that none of the observers left the voting area during this ses-
sion, but Yvonne Jones, one of the Employer’s observers, got
beeped and went to the corner of the room and used the tele-
phone to make a call, after receiving permission from the Board
agent to do so. Ceccarini testified that she was the only ob-
server who used the phone during that final session; she called
her home during the voting period to check on whether her
children were home, with permission of the Board agent, while
no voters were present. In addition, with about 10 minutes left
in the session, with permission of the Board agent, she went to
the bathroom and when she returned, the Employer’s observer
went to the bathroom. Crawford, who was the union observer
for the afternoon session at the Medical Center, testified that
she had her cell phone with her because of her son’s medical
condition. At a time when no voters were present, she received
a call from her fiancé saying that she had taken his keys and he
couldn’t get into the house.
The evidence establishes that during the four voting periods,
observers from both sides briefly left the voting area, with per-
mission of the Board agent, to go to the bathroom and observ-
ers from both sides received or made brief telephone calls in the
voting area, also with permission of the Board agent. As the
Union and the Employer each had two observers at all of the
voting sessions, even on those few occasions when one of the
observers was out of the room or on the telephone, the other
observer was present to watch the ballot box and to check on
the eligibility of employees coming to vote. There is absolutely
no evidence that these telephone calls or brief bathroom ab-
sences had any effect on the integrity of this election process. I
therefore recommend that this objection be overruled.
10. During the election, the Union harassed, coerced, and
threatened employees it believed supported the Employer by
escorting employees to the voting area, remaining in the voting
area, and watching employees vote.
Yvonne Jones, who was an observer for the Employer on the
first shift at the Medical Center, testified that on one occasion
during this voting period, an employee who already voted
brought another employee into the voting area and remained in
the voting area on the opposite side of the room as the voter,
and did not leave until the voter left. As this single incident had
no effect upon the fairness and validity of the election, I rec-
ommend that this objection be overruled.
11. and 12. The Board agents failed to verify the identifica-
tion of voters despite the fact that the Employer issues its em-
ployees picture identification badges, and this failure tainted the
election process making a fair election impossible.
The testimony regarding this objection often involves a “he
said/she said” situation, with somewhat different testimony
from the Employer’s witnesses as from the Union’s witnesses
although all witnesses agree that the Employer issues its em-
ployees photo identification badges.
Employer witnesses: Jones testified that prior to the election
she received a flyer from the Employer and was told by her
manager to bring her picture identification with her to the elec-
tion, but the Board agent conducting the election told her and
the other observers that, “if somebody didn’t have an I.D.
badge she told them just to state their name, that that would be
fine.” She testified that more than 15 voters came to vote with-
out their IDs during her voting session. Nancy Adams testified
that she always wears the Employer’s identification badge
around her neck, and wore it when she went to vote in the elec-
tion. However, nobody asked to see it when she voted, although
they could see it as she went to the table to get her ballot. She
didn’t know any of the observers, although she had seen them
in the hospital and recognized them as employees. Thibeault
testified that the procedure was that employees came to the
table, one of the observers asked them their name, the observers
checked their names on the eligibility list, and they were given
a ballot. Brytowski testified that prior to the opening of the
polls, the Board agents told the observers that, “IDs would not
be required” but that they “could check Ids if we were more
comfortable with that but no one would be turned away if they
did not have an ID.” During the two periods that she was an
observer, about four employees did not have their Employer
identification badges. When the election began, Brytowski
asked all voters to see their identification badges, even if she
knew them. Subsequently, one of the Board agents said: “We’re
not asking for IDs.” Oscadal testified that at the preelection
conferences, there was no discussion of requiring voters to have
their Employer identification badge in order to vote.
Petitioner’s witnesses: Linda Wall, a union observer at the
first and second voting session, testified that prior to the first
voting period there was a meeting with the observers and the
representatives of the Employer and the Petitioner. At this
meeting, one of the Board agents told the observers, “If you
don’t know somebody . . . ask them for an ID.” She recognized
most of the employees coming to vote. Miller, a union observer
at the morning and afternoon session at the Medical Center,
testified that the Board agent told them that if they recognize
the voter, they should just check off their name. Baker, a union
observer at the final voting session, testified that the Board
agent told them, “. . . if we didn’t recognize somebody, to ask
them for their identification. But everybody basically showed
us their badge, because that’s what they were told to do.” Craw-
ford, a union observer at the afternoon session at the Medical
Center, testified that the Board agents told the observers that if
they didn’t know the voters, they could ask to see their IDs.
Hardt testified that at the preelection conference on February
27, there was no discussion between the Employer’s representa-
tives and the union representatives regarding the use of ID
badges at the election, but the Board agents told the observers
that they could ask to see the voter’s ID if they wanted to. Cec-
carini, a union observer at the final voting session, testified that
at the beginning of the voting period the Board agent told the
observers, “that if we had any questions of who someone was
that we could ask for their badge at that time.” She did not ask
to see voter’s badges because, “I didn’t feel the need to . . . I’ve
been there many years and know many employees by face.”
Lisa Hall, the Employer’s observer, asked to see a couple of
employees’ badges.
ST. VINCENT HOSPITAL, LLC 601
I find that this objection has no merit for a number of rea-
sons. The Employer and the Union each had two observers at
each of the voting periods. These observers were told that they
could request to see employees’ IDs if they did not know the
employee. There was no prohibition by the Board agents on
requesting IDs, they left it to the discretion of the observers. In
addition, the Employer had instructed its employees prior to the
election to have their ID with them. Therefore, a vast majority
of the employees came to the voting table with their ID hanging
from their neck. The observers were able to see these IDs, even
if they didn’t formally ask to see them. Finally, at no time prior
to the election, or even before the final voting session, did the
Employer’s representatives request the Board agents to demand
that each voter show his/her Employer ID prior to voting. Other
than the situation involving Marcucci, there is no evidence that
any employee was disenfranchised by the Board’s agent’s in-
structions to the observers.
Avondale Industries v. NLRB, 180 F.3d 633, 637 (5th Cir.
1999), cited by both counsel for the Employer and counsel for
the Union in their briefs, involved an election with almost 4000
voters, over eight times as large as the instant election, where
the employer objected that the Board refused to enforce any
system of routine voter identification beyond voluntary self-
identification. In vacating and remanding the case, the Court
stated:
When examining the voter identification procedures em-
ployed in a representation election, this court does not sit to
determine “whether optimum practices were followed, but
whether on all the facts the manner in which the election was
held raises a reasonable doubt as to its validity . . . Even under
this deferential standard, however, reasonable doubt means
“reasonable uncertainty,” not “disbelief” or “conclusive
proof”. . . Voter identification procedures appropriate for rep-
resentation elections in small units may be inadequate when
the eligible voting pool becomes very large. As the NLRB
Casehandling Manual suggests, “[Voters] may also be asked
for other identifying information as appropriate and as for-
merly agreed on.” [Emphasis added.]
I find that the voting procedure employed was a fair and appro-
priate one and recommend that this objection be overruled.
13. and 14. These objections involve the challenge to Mar-
cucci’s ballot discussed under the challenge section herein, as
well as the discussion above regarding Objections 11 and 12.
15. During the election the Board agents failed to maintain
the integrity of the voting area and were inattentive to the con-
duct in the following ways: by leaving the polling area during
the voting periods, by reading a newspaper and programming a
cellular phone during the voting periods. Again, there are some
differences in the testimony as between the Employer and the
Union’s witnesses.
Jones testified that both of the Board agents were trying to
figure out how to program a cell phone that one of the Board
agents had recently obtained, and they were doing this even
when voters were in the room. During the first 3-hour voting
period, they spent about 2 hours reading the instruction book
trying to understand the phone’s different functions. Thibeault
testified that one of the Board agents was trying to program her
cell phone during the voting sessions. Wall testified about the
cell phone:
A. Well, it was a brand new phone. And she just didn’t
know how to work it, how to program it or whatever. And,
like I said, it was just between when people came to vote,
she was, you know, well, which ring do you like, you
know. And the other woman from the Labor Relations
Board was reading the instruction booklet to her, teaching
her how to program it.
But, again, any time anybody came in that room to
vote, that got put down and we went to the voting.
Q. So there was no use of the cell phone while voters
were in the room?
A. No. No, there wasn’t.
By the second voting session, “she had kind of figured out how
to use it,” but, again, there was no discussion of the cell phone
while voters were in the room. Miller testified that one of the
Board agents had a cell phone, but “when the voters came,
everything is put away.” Baker testified that one of the Board
agents “was programming numbers in the phone, but if some-
body was in the room, she stopped.” Ceccarini testified that
during her voting session there were some discussions between
the observers and one of the Board agents about the special
features on her cell phone at a time when there were no voters
in the room.
Thiebault testified that during the voting session at Vernon
Hills the Board agents had a newspaper “all over the table” and
were reading the paper during most of the voting session, even
when voters were in the room. Brytowski testified that the
Board agents were reading magazines and newspapers, but did
not testify whether voters were present during this time. Wall
testified that in the absence of voters, there was small talk
among the observers and the Board agents: “But the minute
somebody came in to vote, that was it, they were there to vote,
the paper was put down . . . It was all serious . . .” Miller testi-
fied that newspapers were open, “when there was no people to
vote. And when people came to vote, everything was put
away.” Baker testified that newspapers were on the table, “But
when people came into the room, they were packed up and put
away.” Crawford testified that when no voters were present, the
Board agent was reading the newspaper; when a voter came
into the room, the paper was put away. Ceccarini testified that
at times when there were no voters in the room, one of the
Board agents and one of the Employer’s observers were reading
a newspaper.
Jones testified that during the first voting session, one of the
Board agents left the voting area and went to the coffee shop
located in the Medical Center and returned about 20 minutes
later with coffee for the other Board agent and some of the
observers. Thibeault testified that during her observer session at
Vernon Hills, one of the Board agents said that she wanted to
purchase something at the Worcester Art Museum and she left
the voting area and was gone for from 35 to 40 minutes during
the voting period. During this period, the other Board agent
remained in the voting area. Robert Fox and Catherine Kurjan
each testified that they voted at the Vernon Hills voting session
and, when they voted, only one Board agent was in the room.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD602
Wall, who was one of the union observers at the Vernon Hills
voting session, testified that neither Board agent left the voting
area during the voting session. There was some discussion of
the Worcester Art Museum during the first voting session and,
at the second voting session, the Board agent showed the ob-
servers what she bought between the sessions. Thibeault testi-
fied that about 30 people voted during the 2-hour voting session
at Vernon Hills and she and Wall agreed that most of the voters
appeared at the beginning of the session and after that few vot-
ers appeared.
The crux of this objection is the alleged inattentiveness of
the Board agents as established by their reading newspapers
and programming a cell phone, and the alleged absence of one
Board agent for a period of from 35 to 40 minutes. As to the
former allegation, I credit the testimony of the Union’s wit-
nesses that the Board agents and the observers put away the
newspapers and cell phones when voters came into the area.
Not only did I find the testimony of these witnesses more
credible, but it was also more believable in that the Board
agents wouldn’t have any hands free to give out ballots if they
were as busy with newspapers and cell phones as the Em-
ployer’s objections allege. However, as regards the latter alle-
gation, I credit the Employer’s witnesses, principally Fox and
Kurjan, and find that one of the Board agents did leave the
voting area for from 35 to 40 minutes.
In Sawyer Lumber Co., LLC, 326 NLRB 1331 (1998), the
Board stated: “When the integrity of the election process is
challenged, the Board must decide whether the facts raise a
‘reasonable doubt as to the fairness and validity of the elec-
tion.’” The court, in Elizabethtown Gas Co. v. NLRB, 212 F.3d
257, 262–263 (4th Cir. 2000), involving alleged Board agent
misconduct, stated:
Where pre-election conduct is alleged to have invalidated a
representation election, the party seeking to overturn the elec-
tion- in this case the Gas Company- bears a heavy burden.
The challenging party must prove by specific evidence not
only that campaign improprieties occurred, but also that they
prevented a fair election . . . Where, in all the circumstances,
an NLRB Agent’s conduct does not raise a reasonable doubt
about the fairness or validity of the election, even actions that
are contrary to NLRB policy do not constitute grounds for set-
ting aside the results of the election.
During the voting sessions, in the absence of voters, the
Board agents read newspapers and programmed a cell phone.
However, when voters came, everything was put away and, as
Wall testified: “It was all serious.” Clearly, the newspapers and
cell phone did not compromise the fairness and validity of the
election. Amalgamated Industrial Union Local 76B, 246 NLRB
727, 731 (1979). Similarly, even though I have credited the
Employer’s witnesses that one of the Board agents was absent
from the Vernon Hills voting session for from 35 to 40 minutes,
the testimony establishes that there were not many voters at the
Vernon Hills session, and that after the initial flow of voters, it
was very slow. More importantly, even in the absence of one of
the Board agents, there was another Board agent present with
the four observers. There is no evidence that the Board agents’
conduct herein “tends to destroy confidence in the Board’s
election process, or which reasonably could be interpreted as
impugning the election standards we seek to maintain.” Athbro
Precision Engineering Corp., 166 NLRB 966 (1967). I there-
fore find that the Employer has not sustained his burden of
proving that the Board agents’ actions herein prevented a fair
election, and recommend that this objection be overruled.
16. This “objection” is discussed, supra, under Void Ballots.
17. The Board agents improperly denied an employee the
opportunity to vote by directing her to leave the polling area
and telling her that she was not eligible to vote.
Randall testified that she was waiting to vote behind two
people, one of whom was arguing with the Board agent about
her eligibility. The employee said that she began her orientation
in January, but didn’t start working until February. The Board
agent asked her to leave the room, which she did. During this
argument, neither the union observer nor the Employer’s ob-
server said anything. Brytowski testified that this individual
“. . . came in to vote. Her name was not on the list and . . . there
was some confusion between her start date and her orientation
date and she insisted upon voting but she did not vote at that
time.” Crawford testified that the individual was told that she
couldn’t vote because she wasn’t hired on time, and she left.
Apparently, when the Employer prepared the Excelsior list it
omitted this employee’s name and has presented no evidence to
establish that she was eligible. I therefore recommend that this
objection be overruled.
18. The Board agents improperly allowed voters, while in the
polling area and in the presence of voters, to pass notes to the
Union’s observers. This has been previously discussed, supra,
under Objection 6, and recommend that it be overruled.
19. When a voter asked the Board agent why she was being
challenged, the Board agent inaccurately stated that someone
from the Employer and the Union believed that she was not
eligible to vote, which was inaccurate and left the false impres-
sion that the Employer did not want her to vote. This involves
Randall, who testified that when she came to vote she was chal-
lenged by the union observer. When she asked why she was
being challenged, the Board agent said, “Someone from the
Union and someone from the Administration does not believe
that you are eligible to vote.” She voted a challenged ballot
(and I have found, supra, that the challenge should be overruled
and that her ballot should be counted) and the challenge list
states that she was challenged by the Union. I find it highly
unlikely that the Board agent would tell her that someone from
the Union and someone from the Administration felt that she
was not eligible to vote after she was challenged by the union
observer and the Board agent wrote that she was challenged by
the Union. Regardless, she voted a challenged ballot, which
will be counted and testified as a witness for the Employer
herein. There is no evidence that her vote, or that of any other
employee, was affected by the alleged statement by the Board
agent. I recommend that this objection is overruled.
20. In addition to the conduct described above, the Board
agents engaged in other conduct which interfered with the re-
sults of the election. As no additional evidence was produced
regarding this objection, I recommend that it be overruled.
21. The election procedures were tainted by actions of the
Massachusetts Nurses Association, creating an atmosphere of
ST. VINCENT HOSPITAL, LLC 603
fear and reprisal such as to render a fair election impossible. No
evidence was produced regarding this objection, and I recom-
mend that it be overruled.
22. The Union, through its agents and supporters were al-
lowed to gather in a group and remain in and around the polling
areas while the polls were open and employees were voting.
Brytowski, an Employer observer at the final two voting ses-
sions at the Medical Center, testified that on one occasion the
union observer left, by herself, to use the bathroom, and was
gone for from 15 to 20 minutes. She could see through the glass
door that, on her way back, the observer was speaking to some
employees, although she does not know what was said. The
only employee whom she could identify was Fradine John Bap-
tiste. She told the Board agent what was happening, and the
Board agent told the employees outside the doorway to leave,
and they left the area. Ceccarini, the union observer for the final
voting session, testified that at one point some employees were
congregating in the hallway outside the voting area, but the
Board agent asked them to leave, and they left the area. When
she left to use the bathroom, nobody was standing in the hall-
way.
The evidence establishes that some employees were standing
outside the conference room where the election was conducted,
but when the Board agent was made aware of their presence,
she asked them to leave, which they did. There is no evidence
that there were an improper communications between the union
observers and anybody preparing to vote. I recommend that this
objection be overruled. Michem, supra.
23. The Union misled voters by, among other things, falsely
stating that no union dues would be charged for 2 years, the
employees would never pay union dues or initiation fees, and
that the Union had negotiated a contract with Tenet, statements
designed to intentionally mislead employees into supporting the
Union. One aspect of this objection, the waiver of initiation
fees, is discussed supra in Objection 5. There was no evidence
introduced to support the balance of this objection, and I rec-
ommend that it be overruled.
24. The Union engaged in similar, related in other conduct
which interfered with the election. As there was no evidence
proffered to support this objection, and I recommend that it be
overruled.
25. The conduct described above, singularly and/or cumula-
tively, interfered with the election and/or rendered a fair elec-
tion impossible. The gravamen of this objection, as argued in
the Employer’s brief, is that in close elections such as this, the
objections should be more closely scrutinized and, apparently,
even if all of the objections are overruled, put together, they
may cumulatively have affected the results of the election.
Counsel for the Employer is correct that when the election
results are close, objectionable conduct receives close scrutiny.
In NLRB v. Mr. Porto, Inc., 590 F.2d 637, 639 (6th. Cir 1978),
the Board found the union’s conduct to be isolated incidents
that occurred 2 months prior to the election and that their effect
had been dissipated. Because of the closeness of the vote, and
the small unit size, the court disagreed and overturned the result
of the election, stating, “a close election is a factor which de-
mands that even minor infractions be scrutinized carefully.”
Similarly, in NLRB v. V&S Schuler Engineering, Inc., 309 F.3d
362, 372 (6th Cir. 2002), the court stated: “Given the extreme
closeness of the election, the Company’s misconduct can taint
the election result easier.” However, as I have found no objec-
tionable conduct on the part of the Union, there can be no cu-
mulative effect. Therefore, in the absence of any valid objec-
tions herein, I recommend that this objection be overruled as
well.
Conclusions
Based upon the above, I recommend that the two ballots de-
clared void be counted as “No” votes, that the challenges to the
ballots of Marcucci, Aubin, Rubio, Lidonde, Cormier, Zaleski,
and Goding be sustained, that the challenges to the ballots of
Bernard, Ohman, Randall, Jones, Bath, Pilat, and Hall be over-
ruled and their ballots be opened and counted, and that all of
the Employer’s objections be overruled. The Regional Office,
after opening and counting the ballots herein, shall issue a Re-
vised Tally of Ballots and an appropriate certification, depend-
ing upon which party receives a majority of the votes cast.