268 N.L.R.B. 1163 (N.L.R.B. 1984)

Villa Capri Manor

National Labor Relations Board - Board DecisionsFeb 27, 1984

268 N.L.R.B. 1163 (N.L.R.B. 1984)

VILLA CAPRI MANOR Villa Capri Homes, Inc., d/b/a Villa Capri Manor and Nursing and Convalescent Home Division of Local 50, Service Employees International Union, AFL-CIO, CLC, Petitioner. Case 14- RC-9609 27 February 1984 DECISION AND DIRECTION The National Labor Relations Board has consid- ered objections to an election held 12 August 1982 and the Regional Director's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 59 for and 52 against Peti- tioner, with I challenged ballot, an insufficient number to affect the results. The Board has reviewed the record in light of the Employer's exceptions and brief and has adopt- ed the Regional Director's findings and recommen- dations only to the extent consistent with this Deci- sion and Direction. In his report, the Regional Director recommend- ed that the Employer's objections be overruled in their entirety, that other acts and conduct not spe- cifically alleged also be considered unobjectionable, and that the Union be certified as bargaining repre- sentative. We disagree. Certain conduct of a seri- ous and aggravated nature included in the section, "Other Acts and Conduct Not Specifically Al- leged" of the Regional Director's report, specifical- ly, Part C-Smoke Bomb Incidents, Part D-Re- cording of License Plate Numbers of Vehicles, Part E-Fires at the Employer Facility, and Part G- Van- dalism, raise substantial and material issues warrant- ing a hearing. These incidents, if proven, and when considered in their totality, may create a general atmosphere of fear and coercion rendering a free choice in the election impossible. Therefore, we direct a hearing' with regard to the incidents iden- tified above. DIRECTION It is directed that a hearing be held before a hearing officer for the purpose of receiving evi- dence to resolve the issue raised by Parts C, D, E, and G of the portion of the Regional Director's report entitled "Other Acts and Conduct Not Spe- cifically Alleged." After the hearing, the hearing officer shall serve his report on the parties. Within 10 days from issuance of the report, either party may file exceptions to the report with the Board in Washington, D.C. An original and seven copies of ' We note that a hearing might reveal in greater detail than did the investigation the relationship, if any, between the Petitioner and the indi- viduals who allegedly engaged in the conduct here. 268 NLRB No. 176 the exceptions must be filed. Copies must be served on all parties and with the Regional Director. If no exceptions are filed, the Board will adopt the rec- ommendation of the hearing officer. IT IS FURTHER DIRECTED that this case is re- manded to the Regional Director for Region 14 for the purpose of taking action consistent with this decision. MEMBER ZIMMERMAN, dissenting. The majority has remanded this case for hearing to determine whether conduct included in the sec- tion, "Other Conduct Not Specifically Alleged" of the Regional Director's report occurred and whether it may have affected the election. The conduct in issue includes smoke bombing incidents, a report of car license plate numbers being record- ed, incidents of vandalism, and a number of fires at the Employer's facility. As the attached Regional Director's report indicates, none of the incidents was shown to have any relationship to the Petition- er or its organizing campaign. For example, the Employer presented four witnesses who gave state- ments regarding incidents of smoke bombings. In no instance did they indicate that the conduct was attributable to the Petitioner; to the contrary, in at least one case the perpetrator was identified and her motive was related to marital problems. Ac- cordingly, I find the incidents in question as well as the Employer's exceptions raise no material or sub- stantial issues of fact or law which would warrant reversal of the Regional Director's recommenda- tion or require a hearing. I would certify the Peti- tioner as exclusive bargaining representative in the unit involved. REGIONAL DIRECTOR'S REPORT ON OBJECTIONS AND RECOMMENDATIONS Pursuant to a petition filed on June 18, 1982,1 and a Stipulation for Certification Upon Consent Election ap- proved by the Regional Director on July 9, an election was conducted on August 12, among employees of the Employer in the following-described appropriate collec- tive-bargaining unit: All full-time and regular part-time service and main- tenance employees employed at the Employer's 2920 Fee Fee Road, Maryland Heights, Missouri, facility, including nurses aides, dietary employees, laundry workers, housekeeping employees, mainte- nance employees, activity department personnel, physical therapy aides, certified medication techni- cians, but EXCLUDING all licensed practical nurses, dietary technicians, business office clerical employees, including the nursing secretary, profes- All dates are in the year 1982, unless otherwise specified. 1163 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sional employees, guards and supervisors as defined in the Act. The tally of ballots served upon the parties at the con- clusion of the election discloses the following results: Approximate number of eligible voters-142 Void ballots-0 Votes cast for Petitioner-59 Votes cast against participating labor organization-52 Valid votes counted- 11 Challenged ballots-I Valid votes counted plus challenged ballots-112 Challenges are not sufficient in number to affect the results of the election. A majority of the valid votes counted plus chal- lenged ballots has been cast for Petitioner. Timely objections to conduct affecting the results of the election were filed by the Employer on August 19.2 Pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the Regional Director has caused a full and complete investigation to be made of the objections. By letters dated August 26 and Sep- tember 3, the Employer submitted the names and ad- dresses of witnesses expected to give testimony in sup- port of the objections, a brief description of such testi- mony, and documentary evidence in support of the ob- jections. The Petitioner presented witnesses in support of its position with respect to the Employer's objections. All evidence adduced during the investigation has been fully and carefully considered by the Regional Director who reports thereon and recommends as follows: Background The Employer is a Missouri corporation engaged in the operation of a nursing home located at 2920 Fee Fee Road, Maryland Heights, Missouri, the sole facility in- volved herein. At the time of the election, there were ap- proximately 142 employees in the above-described unit under the general supervision of Administrator Larry Boschert. The Objections Objection 1 In its first objection, the Employer alleges that the "Petitioner, by its officers, agents, representatives, and members, did coerce and induce Employees of the Em- ployer by threatening Employees with loss of their jobs if they failed to support the Union in the election." The Petitioner denies that any representative or agent of the Petitioner engaged in the conduct alleged in this objec- tion. In support of this objection, the Employer presented five employee witnesses, each of whom states in their re- spective sworn statements that no representative of the Petitioner or any employee of the Employer threatened A copy of the Employer's objections is attached hereto and marked as Exhibit I. employees with loss of employment should employees fail to support the Petitioner in the election conducted herein. In other respects, the Employer failed to present, and the investigation failed to adduce, evidence that the Petitioner threatened employees with loss of employment for failing to support the Petitioner in the election con- ducted herein. In these circumstances, the undersigned concludes that the conduct alleged in this objection is not supported by the evidence presented or adduced in the investigation. Accordingly, the undersigned recommends that Objec- tion 1 be overruled. Objection 2 In its second objection, the Employer alleges that the "Petitioner, by its officers, agents, representatives, and members, threatened Employees with destruction of their premises and property if they failed to support the Union or if they refrained from participating in the election process." Specifically, the Employer contends that the members of the Petitioner's organizing committee threat- ened employees with physical harm if employees failed to support the Petitioner in the election conducted herein. The Petitioner denies that any representative or agent of the Petitioner engaged in the conduct alleged in this objection. In support of this objection, the Employer presented five employee witnesses, the first of whom states in a sworn statement that no representative of the Petitioner or any emiiployee of the Employer threatened the first employee witness with physical harm for failure to sup- port the Petitioner. The remaining employee witnesses each state in their respective sworn statements that no representative of the Petitioner or any employee of the Employer threatened the witnesses with destruction of personal property or physical harm if employees failed to support the Petitioner or if employees refrained from participating in the election conducted herein. In other respects, the Employer failed to present, and the investi- gation failed to adduce, evidence that the Petitioner threatened employees with destruction of property or with physical harm if employees failed to support the Pe- titioner or refrained from participating in the election conducted herein. In these circumstances, the undersigned concludes that the conduct alleged in this objection is not supported by the evidence presented or adduced in the investigation. Accordingly, the undersigned recommends that Objec- tion 2 be overruled. Objection 3 In its third objection, the Employer alleges that the "Petitioner, by its officers, agents, representatives, and members, did promise specific monetary benefits to Em- ployees and former Employees conditional upon how Employees voted and the Union winning the election." Specifically, the Employer contends that agents of the Petitioner told employees that employees recently dis- charged by the Employer would be reinstated due to their support for the Petitioner contingent upon employ- ees selecting the Petitioner as their bargaining representa- 1164 VILLA CAPRI MANOR tive in the election conducted herein and that this prom- ise of benefit for employees who actively supported the Petitioner constitutes an inducement of value providing grounds for setting aside the election. The Petitioner denies that any representative or agent of the Petitioner engaged in the conduct alleged in this objection. In support of this objection, the Employer presented five employee witnesses, the first of whom states in a sworn statement that during late July or early August, she engaged in a conversation with five nurses' aides during a lunch break at the Employer's facility; that during this conversation one of the aides remarked that the Petitioner was attempting to obtain reinstatement for an employee who was discharged by the Employer during the organizing campaign; that the witness does not recall which aide made the remark; that the witness does not recall the names of all the aides present during this conversation; and that during this conversation no aide said that the discharged employee would be reinstat- ed due to support for the Petitioner or because the Peti- tioner was selected as the bargaining representative of employees. The first employee witness further states in a sworn statement that she has no knowledge as to wheth- er the nurses' aides involved in the aforementioned con- versation supported the Petitioner in the election con- ducted herein; that the nurses' aide making the aforemen- tioned remark did not state from whom such information was obtained; that the nurses' aide making the aforemen- tioned remark did not state that she was authorized to speak to employees on behalf of the Petitioner, and that the first employee witness has no knowledge as to whether the nurses' aide making the aforementioned remark has ever been employed by the Petitioner in any capacity or received any compensation from the Peti- tioner for activities on behalf of the Petitioner. The remaining employee witnesses each state in their respective sworn statements that no representative of the Petitioner or any employee of the Employer said that employees discharged by the Employer would be rein- stated because of the discharged employees' support for the Petitioner or contingent upon the Petitioner being se- lected as the bargaining representative of employees herein. The employee witnesses further state in respec- tive sworn statements that no representative of the Peti- tioner or any employee of the Employer promised specif- ic monetary benefits to employees contingent upon how employees voted or upon the Petitioner being selected as the bargaining representative of employees in the elec- tion conducted herein. In support of its position with respect to this objection, the Petitioner presented Organizer Boneva Brown and Vice President Russell Lucas, both of whom state in their respective sworn statements that no representative or agent of the Petitioner told employees that recently discharged employees would be reinstated due to their support for the Petitioner or contingent upon the Peti- tioner being selected as the bargaining representative of employees in the election conducted herein; that no rep- resentative of the Petitioner promised specific monetary benefits to employees or former employees contingent upon how employees voted or upon the Petitioner being selected as the bargaining representative of employees in the election conducted herein; and that the Petitioner never authorized, condoned or ratified any remarks made by employees with respect to reinstatement of discharged employees. Brown further states that at weekly meetings held by the Petitioner for employees, she advised em- ployees that the Petitioner could file unfair labor practice charges with respect to an employees's termination during the organizing campaign and that subsequent to a decision by the Regional Director that further proceed- ings were warranted with respect to such charge, the ap- propriate remedy might include reinstatement of the dis- charged employee. Lucas further states that on about August 23, he advised a discharged employee to file a charge with the National Labor Relations Board. Brown and Lucas state in their respective sworn statements that the duties of employee members of the organizing com- mittee consisted of securing authorization cards, encour- aging employee attendance at Petitioner's organizing meetings, and distributing notices of organizing meetings and pamphlets prepared by the National Labor Relations Board. Brown and Lucas further state that none of the employee members of the organizing committee has been employed by the Petitioner in any capacity; that employ- ee members of the organizing committee have never re- ceived any wages or compensation from the Petitioner for activities performed on behalf of the Petitioner; and that employee members of the organizing committee have not been authorized to speak on behalf of the Peti- tioner with respect to union representation or any other matter. In these circumstances, the undersigned concludes that the conduct alleged in this objection does not provide a basis upon which the election may be set aside. Assum- ing, arguendo, that the statement of the Employer's first witness concerning the Petitioner's attempt to seek rein- statement of a discharged employee is attributable to the Petitioner, such statement falls within permissable [sic] bounds of campaign propaganda which employees can consider in relation to the position which the speaker is proposing. The Board has held that statements made by a union to employees to demonstrate the potential assist- ance employees may expect through union representa- tion, without conditioning such benefits upon employees' support for the union in an election, simply sets forth an area in which the union would use its position to assist employees, and does not, therefore, provide a basis upon which the election may be set aside. Aventura Country Club d/b/a Turnberry Isle Country Club, 253 NLRB 416 (1980). Accordingly, the undersigned recommends that Objec- tion 3 be overruled. Objection 4 In its fourth objection, the Employer alleges that "by these and other acts and conduct, the Petitioner inter- fered with, restrained and coerced the Employees in the exercise of their free choice, thereby preventing the holding of a free and fair election." The undersigned concludes that Objection 4 fails to satisfy the Board's requirement of reasonable specificity in the filing of objections inasmuch as the Employer has 1165 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failed to indicate the nature of the conduct which would warrant setting aside the election and directing a new election. Therefore, the conduct alleged to have oc- curred in this objection does not constitute a sufficient basis upon which the election may be set aside. Audubon Cabinet Company, Inc., 119 NLRB 349 (1957). Accordingly, the undersigned recommends that Objec- tion 4 be overruled. Other Acts and Conduct Not Specifically Alleged Evidence of certain other conduct was disclosed by the investigation of the objections and has been consid- ered inasmuch as the Regional Director is not limited to the specific issues raised by the objections. International Shoe Company, 123 NLRB 682 (1959); American Safety Equipment Corporation, 234 NLRB 501 (1978). Part A-Contracts Presented to Employees During the investigation, the Employer presented Di- rector of Staff Development Dorothy Levy who states in a sworn statement that on August 13, she and a certi- fied medical technician engaged in a conversation at the Employer's facility; that during such conversation the employee said that employees of the Employer had been presented with a new contract negotiated by the Peti- tioner with the Delhaven Nursing Home located in St. Louis, Missouri; that the employee did not state who had presented the aforementioned contract to employees; that the employee did not state that the Petitioner had told employees that the aforementioned Delhaven contract was a new, rather than an existing, collective-bargaining agreement; and that from this conversation, Levy in- ferred that the Petitioner had told employees that there was a new Delhaven agreement in existence. Levy fur- ther states in her sworn statement that the Employer posted portions of the existing Delhaven contract in the breakroom of the Employer facility. The investigation disclosed that the employee engaged in the aforemen- tioned conversation was eligible to vote in the election herein and cast a ballot without challenge by any party. The investigation further disclosed that during the or- ganizing campaign herein, employees received copies of collective-bargaining agreements negotiated by the Peti- tioner with nursing homes located in the local area from fellow employees; that at a meeting held with employees with respect to union representation, the Employer pre- sented slides of agreements negotiated by the Petitioner with various nursing homes; and that the Employer posted copies of certain contracts negotiated by the Peti- tioner in the breakroom of the Employer facility. The Petitioner denies that any conduct alleged herein provides a basis upon which the election may be set aside, and in support of its position, presented Organizer Brown and Vice President Lucas who each state in their respective sworn statements that the Petitioner negotiat- ed a collective-bargaining agreement with the Delhaven Nursing Home; that such agreement has been in effect for approximately 2 years; that there is no "new" Delha- ven contract; and that no representative or agent of the Petitioner advised employees that there was a new, rather than an existing, agreement between the Petitioner and the Delhaven Nursing Home. Brown further states that upon being advised by employees that the Employer had posted copies of contracts between the Petitioner and the Delhaven and the Mar-Le nursing homes in the breakroom of the Employer facility in June, and in re- sponse to employee requests, during a meeting held with employees on about July 21, Brown presented employees with copies of collective-bargaining agreements between the Petitioner and the Delhaven, Mar-Le, Charvelois and Masonics nursing homes, respectively. In these circumstances, the undersigned concludes that the conduct considered herein does not provide a basis upon which the election may be set aside. The presenta- tion of contracts negotiated by the Petitioner with other employers to employees was conduct in which both par- ties engaged. Inasmuch as employees can reasonably evaluate the contracts for what they represent and render personal judgments as to the information con- tained therein, such conduct falls within the bounds of legitimate campaign propoganda. With respect to the aforementioned conversation between an employee and Director Levy, such conversation occurred on August 13, subsequent to the conduct of the election herein and, therefore, did not occur within the critical period for conduct affecting the results of the election. The Ideal Electric and Manufacturing Company, 134 NLRB 1275 (1961). In other respects, the Employer failed to present, and the investigation failed to disclose, evidence that the Petitioner made misrepresentations with respect to agree- ments negotiated by the Petitioner in a deceptive manner as improperly involving the Board and its processes or distributing forged documents which render employees unable to recognize the propaganda for what it proposes. Therefore, the conduct alleged herein, if it occurred, does not provide a basis upon which the election may be set aside. Midland National Life Insurance Co., 263 NLRB 127 (1982). Accordingly, the undersigned recommends that Part A be overruled. Part B-Anonymous Phone Call During the investigation, the Employer presented an employee witness who states in a sworn statement that at approximately 5 a.m. on August 8, she received a tele- phone call at her residence, at which time a male voice said "help me." The employee witness states that she does not know the identity of the caller; that she re- ceived no further anonymous telephone calls; and that she has no knowledge that the aforementioned telephone calls was related to the Petitioner's organizing campaign. The investigation disclosed that the employee who re- ceived the anonymous phone call was a member of the Petitioner's organizing committee. The Petitioner denies that it engaged in the conduct alleged herein and, in support of its position, presented Organizer Brown and Vice President Lucas who each state in their respective sworn statements that no repre- sentative or agent of the Petitioner placed anonymous telephone calls to employees and that the Petitioner did not authorize, condone, or ratify such conduct. 1166 VILLA CAPRI MANOR Further, the Employer failed to present, and the inves- tigation failed to adduce, evidence as to the identity of the telephone caller. In these circumstances, the undersigned concludes that the conduct considered herein does not provide a basis upon which the election may be set aside. The Employer did not present, and the investigation failed to disclose, evidence that the conduct is attributable to the Petition- er. Salem No. 1, Inc., d/b/a The Seville, 262 NLRB 1282 (1982); J.C. Penney Company, Inc., 214 NLRB 445, 452 (1974). Accordingly, the undersigned recommends that Part B be overruled. Part C-Smoke Bomb Incidents During the investigation, the Employer presented an employee witness who states in a sworn statement that at approximately 2 a.m. on about August 7, her ex-hus- band's ex-wife threw a smoke bomb through the glass storm door of her residence; that neither her ex-husband nor his ex-wife are employees of the Employer; and that this incident was unrelated to the Petitioner's organizing campaign. The investigation disclosed that the first em- ployee witness was a member of the Petitioner's organiz- ing committee. The second employee witness presented by the Em- ployer with respect to the conduct considered herein states in a sworn statement that a week prior to the date of the election, she was advised by the first employee witness that a smoke bomb had been thrown at the first employee witness' residence; that the fourth employee witness has no knowledge as to whether the first em- ployee witness supported the Petitioner or whether this incident was related to the Petitioner's organizing cam- paign. The third employee witness presented by the Employ- er with respect to the conduct considered herein states in a sworn statement that at about 2:50 p.m. on August 12, subsequent to casting her ballot in the election, the third employee witness engaged in a conversation with two employees of the Employer at the Employer facility, wherein one of the employees said that two nurses' aides, including the first employee witness hereinabove and an unidentified employee, had smoke bombs thrown at the aides' respective residences; and that the third employee witness has no knowledge as to whether the two nurses' aides supported the Petitioner or whether the smoke bomb incidents were related to the Petitioner's organiz- ing campaign. The fourth employee witness presented by the Em- ployer states in a sworn statement that on August 13, she engaged in a conversation with first employee witness at the Employer's facility; that the first employee witness stated that a smoke bomb had been thrown at the first employee witness' residence on the evening of August 12, subsequent to the conduct of the final voting session in the election conducted herein; that the fourth employ- ee witness had no knowledge as to whether the first em- ployee witness supported the Petitioner; and that neither the first nor the fourth employee witnesses have any knowledge as to the identity of the individual(s) responsi- ble for the incident or whether such incident was related to the Petitioner's organizing campaign. The Petitioner denies that the conduct alleged herein is attributable to the Petitioner, and in support of its posi- tion, presented Organizer Brown and Vice President Lucas who each state in their respective sworn state- ments that no representative or agent of the Petitioner engaged in the conduct considered herein and that the Petitioner did not authorize, condone, or ratify such con- duct. Organizer Brown further states that at a meeting held by the Petitioner for employees on August 11, an employee stated that a smoke bomb had been thrown at her residence; and that such employee further said that the identity of the individual(s) responsible was un- known. Vice President Lucas further states in his sworn statement that at a meeting held by the Petitioner for employees on about August 25, employees said that an employee with marital problems had had a smoke bomb thrown at her residence. In these circumstances, the undersigned concludes that the conduct considered herein does not provide a basis upon which the election may be set aside. Also, the Em- ployer failed to present, and the investigation failed to disclose, evidence that the conduct is attributable to the Petitioner. Accordingly, the undersigned recommends that Part C be overruled. Part D-Recording the License Plate Numbers of Vehicles During the investigation, the Employer presented an employee witness who states in a sworn statement that on about August 2, the employee witness observed a man carrying a clipboard on the parking lot at the Em- ployer's facility; that the parking lot is used by employ- ees as well as visitors; that the man walked from vehicle to vehicle recording the license plate numbers of vehi- cles; that the employee witness did not recognize the in- dividual carrying the clipboard; and that the employee witness has no knowledge that the individual carrying the clipboard is a representative of the Petitioner. The Petitioner denies that the conduct alleged herein is attributable to the Petitioner, and in support of its posi- tion presented Organizer Brown and Vice President Lucas who each state in their respective sworn state- ments that no representative or agent of the Petitioner recorded license plate numbers of vehicles at the em- ployer's facility and that the Petitioner did not authorize, condone or ratify such conduct. Brown further states in her sworn statement that approximately 3 weeks prior to the election conducted herein, seven members of the or- ganizing committee said that a man was observed by the members recording license plates numbers of vehicles at the employer's facility. The Employer failed to present, and the investigation failed to adduce, evidence as to the identity of the indi- vidual who recorded license plate numbers of vehicles on the parking lot of the Employer's facility. In these circumstances, the undersigned concludes that the conduct considered herein does not provide a basis upon which the election may be set aside. Thus, assum- ing, arguendo, that an individual recorded license plate 1167 DECISIONS OF NATIONAL LABOR RELATIONS BOARD numbers of vehicles at the Employer's facility, the Em- ployer did not present, and the investigation failed to dis- close evidence as to the identity of the individual or that the individual acted on behalf of the Petitioner. The con- duct of unidentified individual is, therefore, not attributa- ble to the Petitioner. Interstate Cigar Co., Inc. and L.S. Amster Co., Inc., 256 NLRB 496, 500 (1981). Accordingly, the undersigned recommends that Part D be overruled. Part E-Fires at the Employer Facility During the investigation, the Employer presented doc- umentary evidence and six employee witnesses who state in respective sworn statements that there were incidents of arson at the Employer's facility, specifically an inci- dent on about June 6, in a linen room and an incident on about July 23, in a shower room; that the employee wit- nesses have no knowledge as to the identity of the individual(s) responsible for such incidents; that an em- ployee was arrested by the St. Louis County police with respect to certain of such incidents; that the employee witnesses have no knowledge as to whether the employ- ee arrested supported the Petitioner in the election con- ducted herein; and that there have been incidents of fires at the Employer's facility prior to the filing of the peti- tion herein. The Petitioner denies that the conduct alleged herein is attributable to the Petitioner, and in support of its posi- tion, presented Organizer Brown and Vice President Lucas who each state in their respective sworn state- ments that no representative or agent of the Petitioner engaged in the conduct considered herein and that the Petitioner did not authorize, condone or ratify such con- duct. The investigation disclosed that the St. Louis County Bureau of Arson and Explosives is currently investigat- ing the aforementioned incidents; that an employee who had discovered certain of the fires was suspended and thereafter terminated by the Employer; that such em- ployee was arrested by the St. Louis County police with respect to the aforementioned incidents; that such em- ployee had signed an authorization card on behalf of the Petitioner; and that such employee was not a member of the Petitioner's employee organizing committee. The in- vestigation failed to establish that the arrested employee had ever been employed by the Petitioner in any capac- ity; that the arrested employee had ever received any wages or compensation from the Petitioner for activities performed on behalf of the Petitioner; or that the arrest- ed employee had ever been authorized to act on behalf of the Petitioner with respect to union representation or any other matter. In these circumstances, the undersigned concludes that the conduct considered herein does not provide a basis upon which the election may be set aside. The Employer did not present, and the investigation failed to disclose, evidence that the conduct is attributable to the Petition- er. Accordingly, the undersigned recommends that Part E be overruled. Part F--Theft of Rolodex During the investigation, the Employer presented doc- umentary evidence and five employee witnesses who state in respective sworn statements that by memoran- dum dated May 6, the Employer notified employees that on May 2, a Rolodex listing employee names and resi- dential telephone numbers had been removed from the nursing supervisor's office at the Employer facility with- out Employer authorization; that the employee witnesses have no knowledge as to the identity of the individual(s) responsible for this incident; that the employee witnesses have no knowledge as to whether the aforementioned in- cident was related to the Petitioner's organizing cam- paign; and that the employee witnesses have no knowl- edge as to whether.the aforementioned Rolodex was thereafter returned to the Employer. The Petitioner denies that it engaged in the conduct alleged herein, and in support of its position, presented Organizer Brown and Vice President Lucas who each state in their respective sworn statement that no repre- sentative or agent of the Petitioner removed the Rolodex from the Employer facility and that the Petitioner did not authorize, condone or ratify the conduct alleged herein. In these circumstances, the undersigned concludes that the conduct considered herein does not provide a basis upon which the election may be set aside. The removal of the Rolodex occurred on May 2, prior to the filing of the petition herein on June 18, and, therefore, such con- duct did not occur within the critical period for conduct affecting the results of the election. The Ideal Electric and Manufacturing Company, supra. Accordingly, the undersigned recommends that Part F be overruled. Part G- Vandalism During the investigation, the Employer presented four employee witnesses, the first of whom states in a sworn statement that in June, subsequent to the filing of the Pe- tition herein, she engaged in a conversation with a nurses' aide at the Employer facility in which the aide said that, subsequent to the filing of the petition herein, the front windshield of the aide's vehicle had been broken while parked at the Employer's facility; that nei- ther the aide nor the first employee witness has knowl- edge as to the identity of the individual(s) responsible for the aforementioned incident; that neither the aide nor the first employee witness have knowledge as to whether the aforementioned incident was related to the organizing campaign; that the employee witness has no knowledge as to whether the aide supported the Petitioner; and that the employee witness has no knowledge as to any other incidents of vandalism to vehicles parked at the Employ- er's facility. The second employee witness presented by the Em- ployer in support of the conduct considered herein states in a sworn statement that I week after the election, she engaged in a conversation with a nurses' aide other than the one who spoke to the first employee witness herein- above at the Employer facility; that during such conver- sation the aide stated that the hood of the aide's vehicle had been dented; that the aide was uncertain as to whether the damage had occurred while the aide's vehi- 1168 VILLA CAPRI MANOR cle was parked at the Employer's facility; that the aide did not know the specific date on which the vehicle was damaged; that neither the aide nor the employee witness have any knowledge as to the identity of the individual(s) responsible for the damage; that the em- ploye witness has no knowledge as to whether this inci- dent was related to the organizing campaign; and that the employee witness has no knowledge as to other inci- dents of vandalism to employee vehicles parked at the Employer's facility. The third employee witness presented by the Employ- er with respect to the conduct considered herein states in a sworn statement that on about August 4, she engaged in conversations with fellow employees at the Employ- er's facility; that she does not recall the names of the em- ployees involved in these conversations; that during such conversations, the unidentified employees stated that on about August 4, batteries had been stolen from vehicles of two employees, one tire of another employee's vehicle was slashed and the front windshield of another employ- ee's vehicle was smashed, while the vehicles were parked at the Employer's facility; that the employee witness does not know the identity of the victims of this vandal- ism; that the employee witness has no knowledge as to the identity of the individual(s) responsible for the van- dalism or whether such incidents were related to the Pe- titioner's organizing campaign. The third employee wit- ness further states that on about August 13, she engaged in a conversation with a nurses' aide, other than those aides mentioned hereinabove; that the aide stated that the four tires of a maintenance employee's vehicle were flat- tened while parked at the maintenance employee's resi- dence; that the third employee witness has no knowledge as to how the aide obtained this information; that the aide had no knowledge as to the date or place where the incident occurred; that the aide stated that the mainte- nafice employee had no knowledge as to the identity of the individual(s) responsible for the incident; that neither the aide nor the third employee witness have any knowl- edge as to the identity of the individual(s) responsible for the incident; that the employee witness has no knowl- edge that the incident was related to the organizing cam- paign. The fourth employee witness presented by the Em- ployer with respect to the conduct considered herein states in a sworn statement that in July she engaged in conversations with fellow employees at the Employer's facility; that she does not recall the names of the employ- ees; that during such conversation she was advised that in July, the batteries of three employee vehicles were stolen while parked at the Employer's facility; that the employee witness does not know the identity of the vic- tims; that she has no knowledge as to whether the vic- tims supported the Petitioner; and that she has no knowl- edge as to whether such incidents were related to the Petitioner's organizing campaign. The fourth employee witness states in a sworn statement that on about August 18, she engaged in a conversation with the aide who spoke to the second employee witness hereinabove; that during such conversation, the aide stated that the aide's vehicle had been dented; that the aide did not know the specific date or location that the damage had been in- curred; that the aide had no knowledge as to the identity of the individual(s) responsible for the incident or wheth- er such incident was related to the Petitioner's organiz- ing campaign; that the aide stated that the aide had sup- ported the Petitioner in the election conducted herein. The investigation disclosed that the employee whose front windshield was smashed signed an authorization card on behalf of the Petitioner prior to the vandalism to the car; that the employee whose vehicle was dented also prior to the vandalism to the car signed an authori- zation card on behalf of the Petitioner and was a member of the Petitioner's organizing committee; and that the employee whose vehicle's tires were flattened did not sign an authorization card on behalf of the Petitioner. The Employer failed to present, and the investigation failed to adduce, evidence that the employees mentioned hereinabove were victims of repeated incidents of van- dalism or any conduct other than what is considered herein, or evidence as to the identity of the individual(s) responsible for the aforementioned vandalism to employ- ee vehicles. The Petitioner denies that it engaged in the conduct alleged herein, and in support of its position, presented Organizer Brown and Vice President Lucas who each stated in their respective sworn statements that no repre- sentative or agent of the Petitioner engaged in vandalism of employee vehicles; that the Petitioner learned of the vandalism from employees subsequent to the conduct of the election herein; and that the Petitioner did not au- thorize, condone or ratify the conduct alleged herein. In these circumstances, the undersigned concludes that the conduct considered herein does not provide a basis upon which the election may be set aside. The Employer did not present, and the investigation failed to disclose evidence that the conduct is attributable to the Petition- er. Beaird-Poulan Division, Emerson Electric Company, 247 NLRB 1365, 1380, 1381 (1980). Further, the vandal- ism, if it occurred, is not so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible. Owens-Corning Fiberglas Corporation, 179 NLRB 350 (1969); American Enka Company, a Divi- sion of Akzona Incorporated, 231 NLRB 1335, 1343 (1977); Monroe Auto Equipment Company, Hartwell Divi- sion, 186 NLRB 90 (1970). Accordingly, the undersigned recommends that Part G be overruled. Assuming, arguendo, that all the conduct alleged in Other Acts and Conduct Not Specifically Alleged did occur, the undersigned further concludes that the totality of such conduct does not provide a basis upon which the election may be set aside. Central Photocolor Company, Incorporated, 195 NLRB 839 (1972); Salem No. 1, Inc. d/b/a The Seville, supra Accordingly, the undersigned further recommends that Other Acts and Conduct Not Specifically Alleged be overruled in its entirety. 1169 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS AND RECOMMENDATIONS Having recommended that the Employer's objections be overruled in their entirety and having recommended 3 Under the provisions of Sec. 102.69 of the Board's Rules and Regula- tions, exceptions to this report may be filed with the Board in Washing- ton, DC. Exceptions must be received by the Board in Washington by October 4, 1982. Under the provisions of Sec. 102.69(g) of the Board's rules, documenta- ry evidence, including affidavits, which a party has timely submitted to the Regional Director in suport of its objections or challenges and which are not included in the Report, are not part of the record before the Board unless appended to the exceptions or opposition thereto which the that Other Acts and Conduct Not Specifically alleged be overruled in seriatim and in toto and the investigation having failed to disclose evidence of other conduct which would provide a basis upon which the election may be set aside, it is further recommended that a Certi- fication of Representative issue. s party files with the Board. Failure to append to the submission to the Board copies of evidence timely submitted to the Regional Director and not included in the Report shall preclude a party from relying upon that evidence in any subsequent related unfair labor practice proceeding. 1170