Villa Sancta Anna Home for the Aged of the First Catholic Slovak Ladies Association

National Labor Relations Board - Board Decisions

Mar 3, 1977

228 N.L.R.B. 571 (N.L.R.B. 1977)

VILLA SANCTA ANNA HOME FOR THE AGED
Villa Sancta Anna Home for the Aged of the First
Catholic Slovak Ladies Association and Service,
Hospital, Nursing Home and Public Employees
Union, Local #47, affiliated with Service Employ-
ees International Union, AFL-CIO, Petitioner.
Case 8-RC-10307
March 3, 1977
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Pursuant to a Stipulation for Certification Upon
Consent Election, approved by the Regional Director
for Region 8 on March 8, 1976, an election by secret
ballot was held on April 14, 1976, among the
employees in the unit described below, to determine
whether such employees desired to be represented by
the above-named Petitioner for purposes of collective
bargaining. At the conclusion of the election, the
parties were furnished a tally of ballots which
showed that, of approximately 30 eligible voters, 27
cast ballots, of which 13 were for, and 14 against, the
Petitioner. There were no challenged ballots.
On April 20, 1976, the Petitioner filed timely
objections to the conduct of the election. The
Regional Director conducted an investigation of the
objections and, on August 4, 1976, issued and served
on the parties his report on objections. In his report
the Regional Director recommended that a hearing
be held as to that portion of Objection 1 regarding
the wage increase granted Alma Hood on or about
March 31, 1976, and that the remaining portion of
Objection 1 and Objections 2, 3, 4, and 5 be
overruled. Thereafter, the Board, by order dated
September 3, 1976, adopted the Regional Director's
recommendations and ordered that the aforemen-
tioned portion of Petitioner's Objection 1 be resolved
after a hearing.
Pursuant to the Board's order, a hearing was held
on October 14, 1976, before Hearing Officer Terry J.
Koozer. The Hearing Officer filed his report on
October 29, 1976, recommending that the portion of
Objection I regarding the wage increase granted
employee Alma Hood be sustained and that the
April 14, 1976, election be set aside and a new
election held. Thereafter, the Employer filed timely
exceptions to the Hearing Officer's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
571
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
3. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All nurses aides, dietary employees, laundry
employees, housekeeping employees, and mainte-
nance employees, but excluding all office clerical
employees, registered nurses, technical employ-
ees, professional employees, guards and supervi-
sors as defined in the Act.
5. The Board has reviewed the rulings of the
Hearing Officer made at the hearing and finds that
no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Hearing Officer's report, the Employer's exceptions
thereto, and the Employer's brief, and for the reasons
set forth below has decided to certify the results of
the election.
Dining room aide Alma Hood was granted a 5-cent
wage raise in March 1976, during the critical period
preceding the election. Hood, who had been em-
ployed off and on since April 1972 as a maid or in
the physical therapy department, broke her leg in
March 1975 and was thereafter unable to work until
she was rehired by the Employer around September
1, 1975, as a dining room aide.
Prior to her accident Hood had been regularly
receiving her 6-month pay increases in April and
October in accord with the Employer's former
practice of granting a raise, normally 10 cents, to
employees 6 months after they begin employment
and again 6 months later on the anniversary date of
their employment and so on at 6-month intervals. In
October 1975, Hood inquired of Administrator
Bossin if she were due a raise at that time and Bossin
informed her that she had instituted a new policy
whereby everyone was to receive a raise on every
January 1 and July 1.
Administrator Bossin testified that the policy was
changed beginning in July 1975 to avoid the
burdensome task of checking personnel records each
228 NLRB No. 62
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
month. She further testified that new or rehired
employees' would receive a 5-cent raise in January
or July if they have 3 months' service on that date,
then would receive another 5-cent raise 6 months
after they began and, after that, would receive a full
raise on the January 1/July 1 schedule. Bossin gave
examples of several new employees whose raises were
handled in this fashion in order to get them on the
new schedule. In accord with this new policy, Hood
was given a 5-cent raise on January 1, 1976, 4 months
after her rehire in September 1975 and then the 5-
cent raise in question herein in March 1976, the 6-
month anniversary of her rehire.
Hood testified that during the last week in March
she spoke with Bossin who told her that she had a
feeling that she was "head of the union." Hood
further testified that when Bossin gave her the
paycheck containing the 5-cent raise on April 2,
1976, Bossin commented, "I gave you an increase.
You see, we don't need the Union for you to get your
six dollars." Hood stated that she discussed the pay
raise with most of the other employees and that
Bossin discussed her raise at an employee meeting in
April before the election.
We agree with the Hearing Officer that the 5-cent
wage raise given Hood on April 2, 1976, does not
represent a variation from the Employer's established
wage policy.2 However, we do not agree with his
conclusion that, because of Bossin's remarks to Hood
in the last week of March and on April 2, the
otherwise lawful wage increase was directly associ-
ated with the pending election and interfered with
the employees' free choice in that election.
It is well established that:
As a general rule, an employer, in deciding
whether to grant benefits while a representation
election in pending, should decide that question
as he would if a union were not in the picture.3
Likewise, an employer is not obligated to maintain
silence or refrain from influencing employees in the
face of an organizing campaign. He must only refrain
I Bossm also related that the Employer has no formal leave-of-absence
policy and employees who are absent for a period of time are usually
considered to be rehired when they report back to work , as in the case of
Hood
from a "threat of reprisal or force or promise of
benefit." 4
Applying these principles to the facts herein, we
view Administrator Bossin's comments to Hood at
the time of her pay increase as simple campaign
rhetoric. We do not believe that this comment or
those made earlier in March can transform an
otherwise lawful wage increase which was granted
pursuant to established policy into objectionable
conduct which would warrant setting aside the
election . Accordingly, we shall certify the results of
the election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of valid votes
have not been cast for Service, Hospital, Nursing
Home and Public Employees Union, Local #47,
affiliated with Service Employees International
Union, AFL-CIO, and that said labor organization
is not the exclusive representative of the employees in
the appropriate unit, within the meaning of Section
9(a) of the National Labor Relations Act, as
amended.
MEMBER JENKINS , dissenting:
Unlike my colleagues, I find that Administrator
Bossin's remarks concerning employee Hood's wage
increase constitute objectionable conduct which
requires that the election be set aside. It is undis-
puted that Bossin accused Hood of being "head of
the Union," and told Hood: "I gave you an increase.
You see, we don't need the Union for you to get your
six dollars." Bossin also discussed Hood's raise at an
employee meeting shortly before the election even
though it was not the Employer's practice to notify
employees of a raise but rather to include it in their
paychecks. The clear import of Bossin's remarks was
to impress upon the employees that the Employer is
the source from which all benefits must flow and thus
inculcate a sense of the futility of union organization.
Accordingly, I find that the Employer interfered with
Hood's and the other employees' free and uncoerced
choice in the election.
Y We note that the Union has not excepted to this finding.
3 The Great Atlantic & Pacific Tea Company, Inc., 166 NLRB 27, fn I
(1967).
4 Sec. 8(c) of the Act.