Three Oaks, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1969

178 N.L.R.B. 534 (N.L.R.B. 1969)

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Three Oaks, Inc. and Local No. 4, of the Service
Employees ' International Union , AFL-CIO,
Petitioner . Case 13-RC-11792
September 19, 1969
DECISION AND DIRECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
Pursuant to a stipulation for certification upon
consent election, an election by secret ballot was
conducted on May 15, 1969, under the direction and
supervision of the Regional Director for Region 13.
At the conclusion of the balloting, the parties were
furnished with a tally of ballots which showed that,
of approximately 62 eligible voters, 54 cast valid
ballots, of which 20 were for the Petitioner, 21 were
against the Petitioner, and 13 were challenged. The
13 challenged ballots were sufficient in number to
affect the results of the election. Thereafter, the
Petitioner and Employer filed timely objections to
conduct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Acting Regional Director conducted an
investigation and, on July 17, 1969, issued and
served upon the parties his report on challenges and
objections, in which he recommended that eight
challenges be overruled and five sustained; that the
Employer's objections be overruled in their entirety
and that Petitioner's objections be overruled except
for additional matters, fully noted below, covering
an alleged grant of benefit and coercive meeting,
which he relied upon in finding that the Employer
engaged in improper conduct affecting the outcome
of the election. He further recommended that in the
event the opening and counting of the determinative
challenged ballots do not result in the Petitioner
receiving a majority of the valid votes cast, that the
election be set aside and a second election directed
on the basis of the Employer's conduct. The
Employer thereafter filed timely exceptions to the
recommendation that the election be set aside
contending that the Board should overrule the
Acting Regional Director's action in setting aside
the election, certify the results thereof or direct a
hearing to resolve questions of fact raised with
respect to the granting of benefits and the allegedly
coercive meeting.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of Section
9(c)(1) and Section 2(6) and (7) of the Act.
4. We find, in accord with the stipulation of the
parties, that the following employees constitute a
unit appropriate for the purposes of collective
bargaining:
All maintenance employees, housekeeping
employees, laundry employees, kitchen employees,
nurse's aids, and waivered LPN's but excluding
LPN's, registered nurses, clerical employees,
professional employees, guards and supervisors as
defined in the Act.
5. The Board has considered the Acting Regional
Director's report on challenges and objections, the
Employer's exceptions thereto and brief, and hereby
adopts the Regional Director's report as modified
herein.
As heretofore indicated, the Acting Regional
Director concluded that the Employer interfered
with the election by (a) revising its system of
computing salaries during the critical period,
thereby granting a preelection benefit to employees
and (b) conducting a meeting at the locus of
managerial authority at which employees were urged
to vote against union representation.
As to (a), the facts show that prior to the events
here in issue employee earnings were computed on a
monthly basis, with monthly earnings then halved
and paid on the 5th and 20th of each month. Under
this system, the wages received by employees on
each pay day were the same even though actual
earnings in each semi-monthly period would be
expected to vary depending upon the amount of time
worked during the governing pay period. Certain
employees apparently could not understand why the
wage payments were not reflective of the variant
hours worked in the corresponding pay periods. To
eliminate this confusion, the wage computation
system was revised so that salaries were computed
on a daily, rather than monthly basis, enabling each
wage payment to correspond with the actual time
worked in the related pay period. This adjustment
did not result in any economic benefit to the
employees. and it does not appear that the change,
made I month before the election, was intended to
influence the outcome of the election In the
circumstances, and contrary to the Acting Regional
Director, we find that the revision in the wage
computation system did not result in a benefit to
employees sufficiently substantial to warrant a
conclusion that it was related to, or furnished
grounds for setting aside, the election. Accordingly,
we overrule the Acting Regional Director's
recommendations based upon this incident.
As to (b) it appears that about 2 days before the
election, the 7 or 8 night shift nurses aids were
called to a meeting in the nursing director's office.
178 NLRB No 87
THREE OAKS, INC.
The meeting was addressed by the Employer's
Executive Director, who appealed for a no-vote in
noncoercive terms. The Acting Regional Director
concluded that this meeting interferred with the
laboratory atmosphere necessary for an election
since it was conducted at the locus of managerial
authority and attended by a small group of
employees. However, it appears that this office is
the regular place of work of the admissions nurse
and has been used for training sessions. In the
circumstances, we find that this incident does not
justify setting aside the election under the General
Shoe doctrine.' Accordingly, we overrule the
Regional Director's recommendations based upon
this mcidctit.
As all objections to the validity of the election
have been ovcrruled,2 we shall remand this
proceeding to the Regional Director for Region 13,
with direction that the determinative overruled
challenged ballots be opened and counted, that the
parties be furnished a revised tally, and that he issue
an appropriate certification, in accordance with the
National Labor Relations Board Rules and
Regulations, Series 8. as amended.
535
DIRECTION
The case is hereby remanded to the Regional
Director.
It is hereby directed that. as part of his
investigation to ascertain representatives for the
purposes of collective bargaining with the Employer,
the Regional Director for Region 13 shall, within 10
days from the date of this Decision, open and count
the challenged ballots of George Gibbs, Carl
Howard, Beverly Sherd, Jean Rutherford, Leotis
Dillard, Georgia Courtney, Grace Wells, and Sylvia
Kalman, and shall thereafter prepare and cause to
be served upon the parties a revised tally of ballots,
including therein the count of said ballots.
In the event that the revised tally of ballots shows
that the results are determinative, the Regional
Director shall issue the appropriate certification.
'General Shoe Corporation . 97 NLRB 499
'In the absence of exceptions thereto, we adopt pro forma, the Acting
Regional Director ' s recommendations that Petitioner's remaining
objections be overruled ; that the Employer's objections be overruled in
their entirety , that the challenges to the ballots of George Gibbs, Carl
Howard, Beverly Sherd, Jean Rutherford , Leotis Dillard. Georgia
Courtney, Grace Wells, and Sylvia Kalman, be overruled, and that the
challenges to the ballots of Nellie Simons, Bernice Bullock. Patricia
Brooks. Monica Brown, and Kathleen Clarke be sustained