U.S. Family Care San Bernadino

National Labor Relations Board - Board Decisions

Apr 29, 1994

313 N.L.R.B. 1176 (N.L.R.B. 1994)

1176
313 NLRB No. 200
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1993 unless otherwise specified.
2 The Employer’s objection states:
The Employer asserts that supervisory taint and influence per-
meates the pre-election period as a result of the activities of cer-
tain team leaders, whom the Board determined to be statutory
supervisors. The Employer believes that statutory supervisors not
only signed authorization cards and attended union meetings, but
also solicited support for the union. Most recently, in the week
preceding the election one team leader, Chris McElroy, urged at
least three employees to vote for the union, thereby intimidating
unit employees.
3 The August 12 Decision and Direction of Election found these
team leaders to be statutory supervisors. The Employer announced
this at an August 20 meeting of employees and told employees that
team leaders were not to discuss the Union with them.
4 The Petitioner has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
5 Employee Carol Graddy testified that she asked McElroy why the
Employer had to have a union on July 9. McElroy told Graddy that
a union would make it harder for the Employer to fire employees
and the employees would get more money.
6 McElroy supervised approximately five employees, Ellis super-
vised two, and Patterson three.
7 Ribbon Sumyoo Corp., 308 NLRB 956, 965 fn. 13 (1992). See
also Meridian Industries, 302 NLRB 464, 466 (1991).
8 Sil-Base Co., 290 NLRB 1179, 1181 (1988). See also Turner’s
Express, 189 NLRB 106 (1971).
Pacific Physicians Services, Inc. d/b/a U.S. Family
Care San Bernadino and Miscellaneous Ware-
housemen, Drivers and Helpers, Local 986,
International Brotherhood of Teamsters, AFL–
CIO, Petitioner. Case 31–RC–7080
April 29, 1994
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
The National Labor Relations Board, by a three-
member panel, has considered an objection to an elec-
tion held on September 9, 1993,1 and the hearing offi-
cer’s report recommending disposition of it. The elec-
tion was conducted pursuant to the Regional Director’s
Decision and Direction of Election issued on August
12. The tally of ballots shows 14 for and 7 against the
Petitioner, with 3 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the
exceptions and adopts the findings, conclusions, and
recommendations of the hearing officer only to the ex-
tent consistent with this decision.
The Employer alleged that prounion conduct by su-
pervisors tainted the election and coerced employees.2
The hearing officer assessed the evidence presented at
the hearing and concluded that three team leaders3 en-
gaged in prounion conduct. We agree with the hearing
officer’s evidentiary findings.4 He found that Team
Leader Christine McElroy, in talking to small numbers
of employees, told them that the benefits of having a
union included better pay and benefits and job protec-
tion. McElroy made these statements beginning in
July5 and continuing until a week before the Septem-
ber 9 election. Also, sometime in July, McElroy, to-
gether with fellow Team Leader Brenda Ellis, asked
employee Joan Caffiel how she would vote and tried
to tell her that ‘‘there were pros to go with the union’’
and that they thought Caffiel should vote for the
Union. In addition, Team Leader Serena Patterson, like
McElroy, told small numbers of employees that the
benefits of having a union included better pay and ben-
efits and less likelihood of being fired. Patterson made
these statements up until about 2 days before the elec-
tion.6 Meanwhile, however, the Employer conducted
an antiunion campaign, including a mandatory meeting
on or about August 20, where it identified the team
leaders as supervisors and told employees the team
leaders were not to speak for or against the Union.
The hearing officer noted correctly that prounion
conduct of statutory supervisors may constitute objec-
tionable conduct warranting setting aside an election in
two situations: (1) when the employer takes no stand
contrary to the supervisors’ prounion conduct, thus
leading employees to believe that the employer favors
the union; or (2) when the supervisors’ prounion con-
duct coerces employees into supporting the union out
of fear of future retaliation by, or rewards from, the
supervisors.7 Because the Employer’s antiunion posi-
tion was communicated to the employees, the hearing
officer found that he was left with an issue concerning
the second element. He further found that the conduct
of McElroy, Ellis, and Patterson was grounds to set the
election aside. In making this latter finding, the hearing
officer noted that the unit was small, consisting of ap-
proximately 24 employees, that the 3 team leaders
making the prounion statements supervised in aggre-
gate 10 employees, and that these statements were
made over a period of several months, until just prior
to the election.
We do not agree with the hearing officer. We are
not persuaded that the prounion statements uttered by
the three team leaders constituted ‘‘coercion’’ that war-
rants setting aside the election. The statements at issue
were not inherently coercive and we find no reason to
view a supervisor’s prounion statements with more
suspicion than a supervisor’s antiunion statements. The
statements were expressed as personal opinions with-
out any hint of retaliation or reward.8 At the same
time, the Employer made clear throughout the election
campaign its opposition to the Union, so there could
be no confusion in employees’ minds regarding where
the Employer stood. We note also that employees
might naturally seek the opinion of their team leaders
1177U.S. FAMILY CARE SAN BERNADINO
9 Wright Memorial Hospital v. NLRB, 771 F.2d 400, 405 (8th Cir.
1985).
10 We note that the cases cited by the hearing officer are either
distinguishable or actually support overruling the objection here. In
Sheraton Motor Inn, 194 NLRB 733 (1971), the Board found that
a ‘‘major’’ supervisor’s active and outspoken support for the union
throughout the organizational campaign, including the day of the
election, warranted setting aside the election and ordering a new
election. The supervisor solicited the authorization cards that sup-
ported the petition, was the union’s ‘‘contact man’’ during the orga-
nizational campaign, met with various union officials on a regular
basis including on the day of the election, exhorted employees inces-
santly to vote for the union, and told employees that if they did not
vote for the union, management intended to cut wages. Clearly this
pervasive conduct far exceeds the occasional prounion comments ex-
pressed by the team leaders here and we therefore find it unneces-
sary to address the merits of Sheraton. More comparable are those
cases, also cited by the hearing officer, where the Board found that
a supervisor’s conduct was not so inordinate as to lead the employ-
ees to fear possible retribution from the supervisor should the em-
ployees reject the union. Thus, in Sil-Base Co., supra, the Board
found unobjectionable a supervisor’s expression of personal opinion
in favor of the union, made in response to employee questions ad-
dressed to him as the employer’s most senior employee. And in Cal-
Western Transport, 283 NLRB 453 (1987), and Meridian Industries,
supra, supervisors engaged in a variety of prounion conduct which
the Board found to be nothing more than the expression of personal
opinion unaccompanied by threats and promises, conduct which
could not reasonably have coerced or lured employees into support-
ing the union. Such is the conduct at issue here.
about the union campaign. Indeed, the testimony of
employee Carol Graddy confirms this. In July, Graddy
asked Team Leader McElroy’s opinion about unioniza-
tion. Both Graddy and McElroy were unaware of
McElroy’s status as a statutory supervisor at this time.
McElroy’s statement that she believed two benefits ad-
hered to unionization was a benign expression of opin-
ion. Similarly, even though McElroy and Team Leader
Ellis asked employee Caffiel how she intended to vote
in this period before team leader status was deter-
mined, the resulting conversation among the three re-
flected their discussion of a controversial issue. The
team leaders offered their personal opinions that bene-
fits were to be gained from unionization.
The continued occasional expression of these opin-
ions by team leaders in the period after they were
identified as statutory supervisors does not warrant a
contrary conclusion. The evidence shows only that
McElroy and Team Leader Patterson told employees
that the benefits of having a union included better pay
and benefits and job protection. This expression of per-
sonal opinion by the team leaders contains no hint of
reward by these supervisors for supporting the Union
or punishment for refusing to do so. Rather, the team
leaders made general statements pointing out the pos-
sible benefits of union representation. These types of
comments are not objectionable.9
Accordingly, unlike the hearing officer,10 we find no
merit to the Employer’s objection and we find that a
certification of representative should be issued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Miscellaneous Warehousemen,
Drivers and Helpers, Local 986, International Brother-
hood of Teamsters, AFL–CIO and that it is the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:
Included: All full-time and regular part-time em-
ployees employed by the Employer in the pa-
tient services, nursing and radiology depart-
ments, the administrative aide and the PBX op-
erator at 2150 Waterman Avenue, San
Bernardino, California.
Excluded: All other employees including ophthal-
mology employees, professional employees,
guards and supervisors as defined in the Act.