Vernon Convalescent Center Co.

National Labor Relations Board - Board Decisions

Dec 6, 1971

194 N.L.R.B. 439 (N.L.R.B. 1971)

VERNON CONVALESCENT CENTER CO. 439
Vernon Convalescent Center Company and National
Union of Hospital and Nursing Home Employees
Local 1199H, Retail Wholesale and Department
Store Union, AFL-CIO, Petitioner. Case
9-RC-9164
December 6, 1971
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret ballot election was con-
ducted among the employees in the stipulated unit
described below. The tally of ballots furnished' the
parties showed that of approximately 40 eligible
voters, 26 cast valid ballots, of which 18 were for the
Petitioner, 3 were for the Intervenor,' and 5 were
against participating labor organizations. There were
3 challenged ballots, which were insufficient to affect
the results. Thereafter, the Employer filed timely
objections to conduct affecting the results of the
election.
On October 28, 1971, the Regional Director issued
and served on the parties his Report and Recommen-
dations on Objections, attached hereto, recommend-
ing that the objections be overruled in their entirety
and Petitioner be certified as the exclusive collective-
bargaining representative in the stipulated unit.
Thereafter, the Employer filed timely exceptions to
the Regional Director's report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
power in connection with this proceeding to a three-
member panel.
Upon the entire record in-this proceeding, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing 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. The parties stipulated and we find that the
following employees constitute an appropriate unit
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All service and maintenance employees employed
by the Employer at its 515 Melish Avenue,
Cincinnati, Ohio Nursing Home, including Activi-
194 NLRB No. 67
ties Director, BUT excluding all office clerical
employees, Registered Nurses (RN's), Graduate
Licensed Practical Nurses (GLPN's), Licensed
Practical Nurses (LPN's), head cook, second cook,
third cook, dietician, physical therapist aid and all
other supervisors, professional employees, and
guards as defined in the Act.
5. The Board has considered the objections, the
Regional Director's report,2 and the Employer's
exceptions and brief and hereby adopts the Regional
Director's findings, conclusions, and recommenda-
tions.
As the Petitioner has received a majority of the valid
ballots cast, we shall certify it as the exclusive
bargaining representative of the employees in the unit
found appropriate.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that National Union of
Hospital and Nursing Home Employees Local
1199H, Retail Wholesale and Department Store
Union, AFL-CIO, has been designated and selected
by a majority of the employees in the unit found
appropriate in paragraph 4, above, and that, pursuant
to Section 9(a) of the Act, the said labor organization
is the exclusive representative of all such employees
for purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
1 Service, Hospital, Nursing Home and Public Employees Union, Local
47, Service Employees International Union, AFL-CIO.
2 In agreeing with the Regional Director that the distribution of the
marked sample ballot by the defeated Intervenor did not interfere with the
election under the Allied Electric rule, 109 NLRB 1270, 1272, we note that
the conduct involved was neither by the party who was successful in the
election (ibid.) nor of such a nature as to suggest to the voters Board
partisanship in favor of the choice receiving a majority of the votes (cf.
Showell Poultry Company, 105 NLRB 580). The Employer 's construction of
the cases cited in its brief clearly misstates the import of each holding,
none of which , contrary to the Employer's apparent view , contains any
implication that the Board intended in Allied Electricto adopt a per se rule
which would apply without question to circulation of a marked ballot by
anyone under all circumstances regardless of possible impact on the voters.
REPORT ON ELECTION
OBJECTIONS TO ELECTION
and
RECOMMENDATIONS TO THE BOARD
Pursuant to the provisions of a Stipulation for
Certification Upon Consent Election, herein called the
Stipulation, approved by the Regional Director on
September 3, 1971, an election by secret ballot was
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted on October 8, 1971, among "certain
employees' of the Employer to determine whether
such employees desired to be represented for the
purposes of collective bargaining by the above-named
Petitioner, or by the above-named Intervenor, or by
neither.
Upon the conclusion of the election, a Tally of
Ballots 2 was furnished to the parties in accordance
with the Rules and Regulations of the National Labor
Relations Board, herein called the Rules and the
Board, respectively, showing the following results:
Approximate number of eligible voters 40
Void ballots 0
Votes cast for Petitioner 18
Votes cast for Intervenor 3
Votes cast against participating 5
labor organizations
Valid votes counted 26
Challenged ballots 3
Valid votes counted plus challenged ballots 29
The challenged ballots are not sufficient in number
to affect the results of the election.
On October 13, 1971, the Employer filed timely
objections to conduct affecting the results of the
election, herein called the Objections, which were
duly served upon the Petitioner and the Intervenor in
conformity with the Rules.
Pursuant to the provisions of Section 102.69 of the
Rules, an investigation of the issues raised by the
Objections was conducted under the supervision and
direction of the Regional Director who, after consid-
ering the results thereof, makes the following report
and recommendations:
The Objections
The Employer's Objections allege in substance,
that:
1. Shortly before the date of the election, the
Intervenor mailed to the homes of eligible employees
or otherwise distributed to them a letter together with
a reproduction of the Board's official secret ballot
used in said election. The reproduced ballot was
marked to indicate the selection of the Intervenor as
I The appropriate collective bargaining unit set forth in the Stipulation
is as follows- "All service and maintenance employees employed by the
Employer at its 515 Melish Avenue, Cincinnati, Ohio Nursing Home,
including Activities Director, BUT excluding all office clerical employees,
Registered Nurses (RN's), Graduate Licensed Practical Nurses (GLPN's),
Licensed Practical Nurses (LPN's), head cook, second cook, third cook,
dietician, physical therapist aid and all other supervisors, professional
employees, and guards as defined in the Act."
the bargaining agent in violation of the Allied Electric
Products rule.
2. For the above reasons and others which may be
revealed in the course of the investigation, the election
should be set aside.
Objection No. 1:
In support of this Objection, the Employer submit-
ted a copy, of the sample ballot mailed by the
Intervenor to the bargaining unit employees together
with the Intervenor's letter which accompanied the
ballot. (Attached hereto as Exhibits 1 and 2, respec-
tively). The sample ballot in question is a reproduc-
tion of the official secret ballot in which the choice
"Service, Hospital, Nursing Home and Public Em-
ployees Union, Local 47, Service Employees Interna-
tional Union, AFL-CIO" is marked with an "X". The
Employer's contentions are set out in a letter which
reads substantially as follows:
The Employer contends that the distribution of a
reproduced official secret ballot of the Board that
has been marked to indicate the selection of one of
the Unions on the ballot violates the rule set forth
in Allied Electric Products, 109 NLRB 1270 and
subsequent cases . The essence of the Allied
Electric rule requires that this election be set aside
because the issuance here of the marked sample
and the official secret ballot used by the Board in
the October 8 election carried with it the improper
implication that the Board favored the selection of
a Union in the election. (Emphasis supplied)
The Employer further contends that the improper
action of the Intervenor should be equated with the
Board's treatment of improper conduct by third
parties, and that even though the Intervenor was not
the successful party in the election, its improper
conduct nevertheless requires setting aside the results
of the election.
The Petitioner asserts that, even though a marked
sample ballot was distributed to all employees, the
rule that such conduct is objectionable is not
controlling in the present situation because the
successful party (the Petitioner) did not distribute the
ballot. The Petitioner, in other words, takes the
position that the election should not be set aside
because the successful party in the election did not
engage in the conduct which is the basis of the
Objection.
The Intervenor submitted no evidence and takes no
position on the Objection.
2 Service of the Tally of Ballots was acknowledged by authorized
observers of the Employer and the Petitioner . A copy of the Tally of
Ballots was served on the Intervenor by registered mail. Authorized
observers of each party certified that the balloting was fairly conducted,
that all eligible voters were given an opportunity to mark -their ballots in
secret and that the ballot box was protected in the interest of a fair and
secret vote.
VERNON CONVALESCENT CENTER CO. 441
The Board had occasion to reaffirm its rule
governing the reproduction of marked, official sample
ballots, by parties to an election, in Allied Electric
Products, Inc., supra. The Board there said:
Upon consideration, the Board has decided that in
the future it will not permit the reproduction of
any document purporting to be a copy of the
Board's official ballot other than one completely
unaltered in form and content and clearly marked
"sample" on its face, and upon objections validly
filed, will set aside the results of any election in
which the successful party has violated this rule.
(Emphasis supplied).
It is clear in this case, that the distribution of the
marked official sample ballot was not made by the
"successful party". Absent a showing that the Peti-
tioner was responsible for the distribution of the
marked sample ballot, the Employer can not invoke
the Allied Electric rule. The Regional Director
therefore concludes that Objection No. 1 raises no
substantial or material issue affecting the results of
[See 442 and 443 for Exhibits 1 and 2.1
the election and recommends that it be overruled.3
Objection No. 2:
The Employer offered no evidence in support of this
Objection other than the evidence considered under
Objection No. 1 and no evidence was revealed during
the investigation. Accordingly, it is recommended
that Objection No. 2 be overruled. Audubon Cabinet
Co., 119 NLRB 349.
Conclusions and Recommendations.-
For the reasons set forth fully above, the Regional
Director concludes that the Employer's Objections
raise no substantial or material issues affecting the
results of the election. It is, therefore, recommended
that the Board overrule the Objections in their
entirety.
As'the Tally of Ballots discloses that the Petitioner
received a majority of the valid votes cast, it is further
recommended that the Board issue an appropriate
Certification of Representative.
3 The Board has consistently followed this rule. See Hughes Tool
Company, 119 NLRB 739.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
EXHIBIT I
UNITED STATES OF AMERICA
NATIONAL LABOR RELATIONS BOARD
OFFICIAL SECR BALLOT
TFO TAIN
E
FO
.VERNON ESC
ii Cinnati Ohio
This ballot is to determine the collective bargaining representative,
if any, for the unit in which you are employed.
MARK AN V' IN THE SQUARE OF YOUR CHOICE
SERVICE, HOSPITAL, NEITHER NATIONAL UNION OF
NURSING HOME AND PUBLIC HOSPITAL AND NURSING
EMPLOYEES UNION, LOCAL HOME EMPLOYEES LOCAL
47, SERVICE EMPLOYEES 1199H, RETAIL, WHOLE-
INTERNATIONAL UNION9 SALE AND DEPARTMENT
AFL--CIO STORE UNION9 AFL--CIO
DO NOT SIGN THIS BALLOT. Fold and drop in ballot box.
If you spoil this ballot return it to the Board Agent for a new one.
EXHIBIT 1
VERNON CONVALESCENT CENTER CO.
EXHIBIT 2
443
DEAR EMPLOYEE;
THANK YOU FOR YOUR FULL COOPERATION IN TALKING WITH US ABOUT OUR UNION. LOCAL 47 #. WE REALIZE THIS
IS A GREAT EFFORT IN YOUR BEHALF AND THAT WITHOUT YOUR HELP WE COULD NOT REACH OUR GOAL IN
HELPING ALL CONCERNED . MAY WE COUNT ON YOU TO ASSIST US IN VOTING FOR LOCAL 47 # ON OCTOBER 8TH.
ENCLOSED YOU WILL FIND A SAMPLE BALLOT OF THE ELECTION. WE WILL BE CONDUCTING A MEETING WED. OCT.
6TH AT THE CINCINNATI HEALTH CENTER AT THE CORNER OF BURNET & MELISH. THE FIRST MEETING WILL BE HELD
AT I: PM . THE NEXT ONE AT 5:30 PM. MAKE A LIST OF ALL THE QUESTIONS YOU WANT ANSWERED AND ASK THEM WE
ARE THERE TO ANSWER THEM FOR YOU. REMEMBER THAT YOU THE EMPLOYEE ARE THE DRIVERS AND WE ARE THE
CARS. SO LET US WORK FOR YOU.
SUPPORT THE LOCAL THAT HAS YOUR INTEREST AT HEART.
Local 47 #
REPRESENTATIVES OF LOCAL 47#