Western Health Facilities, Inc.

National Labor Relations Board - Board Decisions

Jan 2, 1974

208 N.L.R.B. 56 (N.L.R.B. 1974)

56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Health Facilities , Inc. and Retail Clerks
Union Local No. 246;chartered by Retail Clerks
International Association, AFL-CIO, Petitioner.
Case 19-RC-6679
January 2, 1974
DECISION ON REVIEW, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 19 on
June 14, 1973, an election by secret ballot was
conducted on July 20, 1973, under his direction and
supervision, among the employees in the unit found
appropriate. Upon conclusion of the balloting, the
parties were furnished with a tally of ballots which
showed that, of approximately 27 eligible voters, 30
cast ballots, of which 18 were for, and 9 against, the
Petitioner, and 3 were challenged. The challenged
ballots were insufficient in number to affect the
results of the election. Thereafter, the Employer
timely filed 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 Regional Director conducted an investigation
and on August 21, 1973, issued his Supplemental
Decision and Certification of Representative in
which he overruled all the objections. Thereafter,
pursuant to Section 102.67 of the Board's Rules and
Regulations, the Employer filed a timely request for
review and the Petitioner filed a statement in
opposition thereto.
On September 24, 1973, the Board, by telegraphic
order, granted the request for review. Thereafter, the
Employer filed a supporting brief and the Petitioner
filed a brief in support of the Regional Director's
decision.
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.
The Board has considered the entire record in this
case with respect to the issues under review, together
with the briefs of the parties, and makes the
following findings:
The objections relate solely to the contents of the
Petitioner's campaign letter with attachment which
was mailed to employees on July 9, 1973, as to which
the Regional Director found as follows:
The above letter asserts that the attachment
thereto is a page from a collective-bargaining
208 NLRB No. 20
agreement between another nursing home facility
and another local of the Retail Clerks. However,
the investigation has disclosed that such "page"
is, in fact, a synopsis apparently prepared by the
President of the Petitioner from the wage sched-
ule of a Retail Clerks standard-form agreement
effective in the Minneapolis, Minnesota area.
Moreover, examination of the wage rates set forth
in the actual agreement from which the synopsis
was reproduced reveals that the synopsis contains
rather substantial variances from the actual
contract rates. While those rates for the first 3
months set forth under "Effective September 1,
1973" in the attachment are accurate, the rates
appearing under "2nd-3 months" are actually the
rates for an employee who has been employed for
a year. Likewise, those rates under "2nd-6
months" are actually the rates after 2 years and
the rates listed under "JOURNEYMAN" are the
rates for an employee who has been employed for
3 years. Several intervening rates in the actual
contract do not appear in the attachment.
Additionally, the actual contract has no wage
rates "Effective September 1, 1974." The rates set
forth in the attachment under that heading
appear to be contrived.
The Regional Director concluded that Petitioner's
letter with the attachment "had a significant impact
on the employees involved, particularly since the
contract referred to presumably was within the
special knowledge of the Petitioner . . . ." In
addition, the Regional Director found that the
attachment to the letter was a "substantial misstate-
ment of fact" and that, in effect, the actual wage
scale had been 'altered "significantly upward."
Moreover, he found the letter was also misleading in
identifying the contract wage rates as being from a
contract "in another area" when actually from the
"distant State of Minnesota."
Notwithstanding the above finding, the Regional
Director refused to set aside the election because he
concluded that the Employer had sufficient time to
make an effective reply and did, in fact, make such a
response.
The Employer contends in its request for review
that because of the nature of the Petitioner's
misstatements of fact and its misleading reference to
a facility "in another area," as found by the Regional
Director, it did not have adequate time before the
election to make an effective reply to the Petitioner's
material misrepresentations. In the circumstances
herein, we agree. Thus, the Employer became aware
of Petitioner's letter on July 13, 1973, but was unable
to obtain a copy of the letter until July 16, 4 days
prior to the election. On that date, the Employer
i
WESTERN HEALTH FACILITIES
mailed a letter to its employees advising them that
the convalescent facility named by Petitioner did not
exist in the State of Washington and, further, that the
alleged wage chart- appeared to be typed on the
Petitioner's typewriter.
Although the Employer's July 16 response to
Petitioner's letter and attachment suggested some
possible impropriety by Petitioner, such a response
without specific knowledge of the extent of the
material misrepresentations reflected in Petitioner's
attachment precluded an effective reply to the
serious misrepresentations here. The Employer as-
serts it did not discover until after the election that
the "contract" referred to by Petitioner was located
in the State of Minnesota. Moreover, as found by the
Regional Director, the purported contract page was
no more than a synopsis containing "substantial
variances" of a standard-form agreement.
In these circumstances, where the Petitioner's
distribution, as in Hollywood Ceramics Company,
Inc.,' concerned an erroneous statement of wage
rates, a subject of "utmost concern to the employ-
57
ees," and where the location of the facility referred to
by Petitioner was not disclosed, and where the wage
attachment was falsely made to appear as a copy of
an existing contract, there was little, if any, possibili-
ty that the Employer or the employees could have
determined the falsity of Petitioner's distribution
prior to the election so as to properly evaluate it and
thus neutralize its impact on the election. Therefore,
we find that there was not ample time prior to the
election for the Employer effectively to reply to the
Petitioner's misrepresentation.2
Accordingly, we hereby overrule the decision of the
Regional Director and set aside the election, and we
shall direct that a second election be conducted.
ORDER
It is hereby ordered that the election conducted
herein on July 20, 1973, be, and it hereby is, set aside.
[Direction of Election and Excelsior footnote
omitted from publication.]
1 140 NLRB 221.
z Zarn, Inc, 170 NLRB 1135.