Dominguez Valley Hospital

X842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Medical Hospital of Compton, d/b/a Do- minguez Valley Hospital and Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO, Pe- titioner' and International Union of Operating Engineers, Local 501, AFL-CIO, Petitioner.2 Cases 21-RC-15969 and 21-RC-15976 August 27, 1980 DECISION ON REVIEW AND CERTIFICATION OF REPRESENTATIVE BY MEMHI RS JNKINS, PI-NI IIO., AND TRU ESDAI.E On December 31, 1979, the Acting Regional Di- rector for Region 21 issued a Supplemental Deci- sion, Order, and Direction of Second Election in the above-entitled proceeding, in which he set aside the election held on August 31, 1979, in voting groups A and B on the basis of his conclu- sion that certain of the Employer's objections thereto should be sustained.3 Thereafter, pursuant to the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer and Local 399 filed timely requests for review of the Acting Regional Director's decision. The Em- ployer contended that he erred in overruling cer- tain portions of its Objections 12 and 15, and Local 399 contended that in sustaining the Employer's Objection 2 and certain other portions of its Objec- tions 12 and 15 he departed from precedent. By telegraphic order dated February 8, 1980, the National Labor Relations Board denied the Em- ployer's request for review and granted Local 39 9's request for review. (Member Truesdale, dissenting in part, indicated he would have denied Local 399's request for review as to Objection 2.) The Employer filed a brie,' on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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, lHereinafter called Local 399 leretinafter called I cal 5)1 ' Ih tally oi hallois for ltitig group I, mnaillenance employees onl. shouwed hat of approximately 14 eligible Soters, 14 hallots ereC cast, of Lhich I3 ere for ocal 5)1. 0() were fr Ilocal 319. arid I I were against Ihe participating labor organialionis There iscre no void hallolts rand none x ;as challenged Fhecrcorc, the ballolts of grioups A and It avere pooled all ernplhoees) and the tall5 of' tlhos ballots showedl that of ap- proxima tely 320) eligible ,olcrs 273 balllts .ere cast, of ,ahich 151) ,sere fir ocal 99 106 were against. 2 w v crc ild. rd 17 verc hialleniged The mpltoyer filed It objections ad I elcal 5(1 filed 2 ohbjectlion, As indicated, certain of Ihc Fl lnployer's objIctIlis rc s ue st eilled b t lie Acting Regionall lirctor; all other objections ere c.l ruledLl 251 NLRB No. 119 including the Employer's brief on review, and makes the following findings: The Employer's Objection 2 alleged that an in- correct announcement of the hours of the election. made over the Employer's PBX system, caused confusion and prevented some employees from ex- ercising their right to vote. As found by the Acting Regional Director, the election at the Employer's facility was scheduled in two sessions, from 6:30-7:30 a.m. and from 2:30 4 p.m. Due to the size of the Employer's operation and the various shifts worked by employees, an- nouncements regarding the voting times were made periodically throughout the day over the public ad- dress (PA) system. In making one afternoon an- nouncement, the Employer's PBX operator incor- rectly stated that the polls would close at 4:30 p.m. rather than 4 p.m. A few minutes later, she reread the notice correctly, but apparently did not refer to the preceding announcement as incorrect. Five or six voters who appeared at the polls after 4 p.m. were permitted to cast challenged ballots. There was also evidence that another eligible voter, Eva Davis, attempted to vote after the closing of the polls but was not permitted to do so, even though Board agents and observers were still in the voting area. One of Local 399's observers stated that at least one late voter w\as turned away, hut the inves- tigation did not disclose whether or not that voter was Davis. The Acting Regional Director noted that 47 eli- gible voters did not cast ballots, a number large enough to affect the outcome of the election. Al- though the investigation did not reveal any evi- dence as to the likelihood that a substantial nurmber of these 47 voters attempted to vote after 4 p.m., that they heard the one incorrect announcement, or even that they were scheduled to vote during the afternoon shift, he concluded that there exists a reasonable belief that the incorrect announcement, combined with the Board agenits' conduct in not permitting one, possibly two, voters to cast ballots, resulted in uncertainties, thus compromising the in- tegrity of the election process to the point that the election should be set aside. Petitioner Local 399 contends that the Acting Regional Director's conclusion that the incorrect announcement caused the integrity of the election process to be compromised is highly speculative. particularly since his decision does not support his conclusion that a large number of eployecs vwere disenfranchised by the incorrect announcement. We find merit in this coltentioll. In sustaining Objection 2, the Acting Regional Director cited Repal Bra i Manotiiuclurimng Compa- DOMINGUEZ VAITTY 110SITIAl 84; . y, 4 and .. D. Julliard and Co., : for the proposi- tion that the integrity of the election process was compromised. In our opinion, these cases are dis- tinguishable. In Repcal Brass, the polls were closed minutes prior to the scheduled closing time due to the arbitrary selection of an inaccurate timepiece. At least I of the 39 eligible voters who did not vote was prevented from doing so by the early closing. Inasmuch as the election results could have been affected by the votes of those eligible who did not vote, the election was set aside. In Julliard, the Board refused to set aside the election where there was no affirmative showing that any disenfranchisement of eligible voters "may have resulted" from the asserted withdrawal of the employer's offer to permit voting on company time. Finding that a representative number of eligi- ble employees did vote and no affirmative showing that any failed to vote because of this alleged con- fusion, the objection was overruled. Unlike the situation in Repeal Bras.s, the Board agent conducting the election at DominguCe Valley did not close the polls early. Instead, as the Em- ployer concedes, votes were accepted up to at least 15 minutes after the polls were scheduled to close. This enabled five or six eligible voters who ap- peared after 4 p.m. to cast ballots under challenge (ballots which would have been opened if they had been determinative of the outcome). In his investigation of the objection, the Acting Regional Director found evidence that one eligible employee-and possibly another-appeared after the polls were finally closed, and was not allowed to vote under challenge. The Employer stated in its brief on review that the polls were actually closed by 4:15 p.m., and asserted that because union and employer representatives left the voting area after that time for the counting of the ballots, it was unable to ascertain which employees arrived to vote after 4:15 p.m. However, the Employer of- fered no evidence, nor was any uncovered during the investigation, to show that the 47 eligible unac- counted-for voters were misled by the one incor- rect announcement. There were numerous other correct announcements made periodically through- out both shifts, in addition to the normal election notices posted prior to the election, containing the hours the polls would remain open. We agree with Local 399 that the Acting Re- gional Director's conclusion is unduly speculative. We believe it would be unreasonable to find that the inadvertent and minimal deviation in the instant case of one incorrect announcement, weighed against numerous correct announcements and 10' 4 N R 4 1 54) I lI NI RPI 2197 1q54) posted notices, would so confuse eligible voters as to prevent them from attempting to vote if they in- tended to do so, or from seeking clarification as to the correct poll closing time. Absent such a reason- able basis for believing that a significant number of the approximately 47 eligible employees who did not cast ballots were misled or confused by one in- correct announcement, we find insufficient basis for setting aside the election. 6 Accordingly. we hereby overrule the Employer's Objection 2. The Acting Regional Director sustained the Em- ployer's Objections 12 and 15 to the extent they al- leged that Local 399 misrepresented that it had ne- gotiated terms and conditions of employment for employees at another hospital. The alleged misrepresentation is contained in a one-page leaflet bearing the caption "We're orga- nizing Dominguez Valley for common sense." Peti- tioner Local 399 states the leaflet was distributed 2 weeks before the election. The Employer asserts it reviewed the document the day before the election and therefore had insufficient time to verify its ac- curacy. The leaflet depicts, in bar graph form, spe- cific wage rates received by four classifications of employees at "Kaiser Hospitals" and at "County Hospital," and places question marks above the bars representing wvages paid by the Employer. Below the graphic representations are the words: "Compare . . . Then vote for 399." The Employer asserts that the leaflet conveys the impression that Local 399 negotiated contracts at Kaiser and County Hospitals. It is undisputed " Sc .- I Jlfurd. upra In BoitaR Rbon U1rh and IlBr. .z. i Wa rinr (ronpunt. 7 NLR I 1 1949). relied upon by our dissenting colleague. the poll, were closed 45 minutes early when it was determined that all emplo)ees on the eligibility list had voled However. there were 76 laid- roff employees who had not been included on the eligibility list who were alleged h) the petitioning union t) be eligible. Only nine soted (under challenge); fur ecre turned away after the polls were closed. hc Board found that, under the circumstance. the premature closing of the polls s· as prejudicial error where the number of laid-ioff emplo ee, who hld nlot voted was sufficient to affect the results. and the Board agent had been apprised that these allegedly eligible employees had not s, oted We vste Bonita as distinguishable factually from the instant cae. in that the polls were indeed closed early, contrary to Board rules More- oer the Board agent closed them over the protest of one of the parties who ads ised him that these allegeoly eligible employees had not oted Here. to engage in the inference suggested by our dissenting colleague ,would require hat we accept the suggestion that a substantial number f emploees (a) were misled b the incorrect announcement. (h) showed up to ote after 4 15 p m , ( upon arri al. fund the polls closed. and (dl did notl thereafter register some form of protest or complaint er having beetl disenlfranlchtised Ir outir piniorl the absence of any such protestl or complrll clcarl ritegates our colleague's suggested inference that a sub- ,antial number of emplohees could hase been misled by the incorrect anr- nouncement In an) e elit, if swe were disposed ii give credence to the suggested inference that ia luhstantial number (of emploees culd hac heen miled bh the in.orrect .inllouncement we rouild nor t se side the eleciiln but, rat:her, uuld remand the case t the Regional Drector for further iril citigatl)ln to deternmie icshter or not the niing 47 enplo!- cC, cr- r CrC iio workilng In the oispilal it the Iihc *f ihe a- Iiiulic11ll Miid ll .. ,uld 'Ir cIulld no h ll ilrd llld relied on Ilhe iC rrec l ialli(lII n celCntIi 844 I)LECISIONS OF NATIO()NAL IABO()R REIATIONS BO()ARI) that Local 399 did in fact negotiate a contract with Kaiser, covering the four classifications of employ- ees whose wage rates are graphically depicted, and that sister locals of Local 399 negotiated a contract with County covering those classifications. The Acting Regional Director agreed with the Employ- er that the document did convey the message that Local 399 had negotiated the wage rates depicted for County Hospital employees. He added that the same message was again conveyed by Local 399 in another leaflet, which was distributed on August 28, 3 days before the election. That leaflet, cap- tioned "For the record," states in part: But before we look at the statements Adminis- trator Hennessy did make, there is one fact he cannot disprove or dispute. Local 399 members in hospitals similar to yours receive better wages, better benefits, and enjoy better conditions .... Two paragraphs below this statement, responding to Hennessy's earlier letter to employees stating "you do not need a union to obtain excellent bene- fits, you already have them," the leaflet reads: We agree that you have a substantial number of benefits. However, Local 399 is most con- cerned with the quality of employee benefits not the quantity, which management would like to dwell on. In addition, the salary level for LVN (Certi- fied) at Step 5 quoted to be $1,777 per month is still not comparable with a regular LVN at Kaiser, being $1,217 per month, or a regular LVN at County Hospital being $1,143 per month. Local 399 contends that the bar graph represen- tation of wage rates does not indicate that Local 399 negotiated the rates for employees at either Kaiser or County Hospitals and was merely intend- ed to convey to unit employees what employees in similar classifications were receiving at two other hospitals in the area. Clearly, the document on its face does not indicate whether or not the employ- ees of Kaiser or County Hospitals, whose wage rates were depicted, were represented by any labor organization, nor does it imply such representation by Local 399. Likewise, the leaflet distributed on August 28 merely indicated, at one point, that Local 399 represented employees at similar hospi- tals, without specifying the hospitals' names or their locations; and it asserted, at another point, that the salary level for certain of the Employer's LVNs quoted by Hennessy was not comparable with the rates received by regular LVNs at Kaiser and County Hospitals, the same rates as given in the earlier leaflet. Again, this was done without stating specifically that these wage rates were ob- tained through collective bargaining. Thus, in our view, the statements made about wage rates at Kaiser and County Hospitals in the two leaflets, considered together, cannot be said to convey the impression that Local 399 represented the employ- ees of these hospitals. But even if we accept the Acting Regional Director's conclusion that the leaflets contained a misrepresentation as to Local 399's status with regard to the employees at County Hospital, the facts show that Local 399 did negotiate the wage rates at Kaiser Hospital. The facts also show that the rates at County Hospital were, in each cited classification, substantially lower than the rates Local 399 negotiated at Kaiser Hospital. In such circumstances it is clear that the Employer's employees would not have been in- duced to vote for Local 399 because of the lower rates at County Hospital, as against the substantial- ly higher wage rates at Kaiser Hospital. Accord- ingly, we conclude that Local 399 did not engage in any misrepresentation of a material fact which would warrant setting aside the election.7 The Employer's Objections 12 and 15 relating to these alleged misrepresentations are therefore hereby overruled. Accordingly, as the Employer's objections have been overruled, and as the tally of ballots shows the Union has received a majority of the valid bal- lots cast in the election, we shall certify the results of the election. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representaive of all employees in the unit found appropriate herein for the purposes of col- lective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of em- ployment. MEMBER TRUESDALE, dissenting in part: Contrary to my colleagues, I would not certify Petitioner Local 399 at this time. Rather, I would sustain the Employer's Objection 2 and direct a new election herein. In this regard, I agree with the Acting Regional Director's conclusion that the 7 Ilollywood (ramic ( mpany. In:., 140 NLRB 221 (192) See alkr General Kir o (C'ulfrrno , Inc. 21q N.L R hig (1978\ Mcmhber I'ncllo wovuld agree thalt the mircp l.CIclatill alleged in Ihle FmployCer'. oblcc- tiloll Ll'S nII t \.itiarrln Ctl ing iMid the lcCiol l, hut S( finlld, for the rea- .ils solt forth i Shlippitg wKa ISdl M, tr c, Ic . 228 N R 1311 (1977) See aid his diss.inting opiin in ( n r terul Knit, pra DO)MINGUFZ VALLLEY HSPITAL 845 election should be set aside based on his finding that there was some confusion as to exactly when the polls wre to close because of a misread an- nouncement concerning the hours of the election. The uncontroverted facts, as more fully set forth in the Acting Regional Director's report, warrant repeating here. On the afternoon of the election, the PBX operator incorrectly announced over the public address system that the polls would remain open until 4:30 p.m. rather than 4 p.m. The mistake was apparently called to the operator's attention by one of the Employer's supervisors. While the oper- ator reread the announcement shortly thereafter, stating the correct closing time of 4 p.m., she did not state that the earlier announcement had been incorrect. It appeared to the Acting Regional Director that some, if not all, of the five or six eligible voters who presented themselves at the polls after 4 p.m. were told by their supervisors that the polls were to remain open until 4:30 p.m. The Board agents permitted these voters to cast challenged ballots. However, at least one eligible voter, employee Davis, who decided to vote after 4 p.m. was not permitted to cast a ballot although the Board agents and observers were still in the voting area. In this regard, Davis stated, inter alia, that she had seen the election notices several times prior to the election but had not read the notice in detail and did not remember reading the voting times. She also stated that she did recall hearing the election announcements over the public address system and, as noted by the Acting Regional Director, at least one such announcement stated that the polls would be open until 4:30 p.m. Additionally, one of Petitioner's election observ- ers stated that at least one late voter was refused permission to vote. In this regard, while the inves- tigation did not disclose whether or not the voter referred to by the observer was Davis, the Acting Regional Director observed that there exists the possibility that two voters were not permitted to cast ballots. As pointed out by the Acting Regional Director, 273 valid votes and challenged ballots were cast out of 320 eligible voters, leaving 47 eligible voters unaccounted for, a number sufficient to affect the results of the election. The Acting Regional Direc- tor noted that, while there was no evidence that all of the 47 unaccounted-for eligible voters attempted to vote after 4 p.m. or that they heard the incor- rect announcement concerning the hours of poll- ing, there exists a reasonable belief that the combi- nation of the incorrect announcement and the Board agents' conduct in not permitting one, and possibly two, voters to cast ballots resulted in un- certainties in the election results. My colleagues have not set the election aside here because they have found no reasonable basis for believing that a significant number of the ap- proximately 47 eligible employees who did not cast ballots were misled or confused by the incorrect announcement. 1, however, cannot ignore the in- correct announcement by assuming that it did not affect the decision of some of these employees as to the time that they would vote. It is the Board's responsibility to assure that a full opportunity to vote be given to those eligible. It is, of course, impossible here to determine whether and to what extent the incorrect an- nouncement affected the outcome of the election. However, in view of the fact that one-possibly two-of the 47 eligible voters who attempted to vote after 4 p.m. heard the incorrect announce- ment, it appears neither unreasonable nor unduly speculative to conclude that other eligible employ- ees who did not cast ballots were similarly con- fused by the incorrect announcement. Further, while I find persuasive the affirmative showing here that disenfranchisement of eligible voters may have resulted from the incorrect announcement, I note that Board precedent does not require such af- firmative evidence. Thus, a sufficient basis for set- ting aside an election exists upon a showing, inter alia, that the number of eligible voters who are prevented from voting are, in fact, sufficient to affect the results of the election.8 Where, as here, it is clear that the votes of the employees possibly disenfranchised by the irregu- larity are sufficient in number to affect the outcome of the election, it seems obvious that the atmos- phere in which the election was conducted raises sufficient doubts as to the validity of the results as to require that the election be set aside and a new election directed. Accordingly, I dissent from my colleagues' refusal to do so. ' See, e g. Bonita Ribhhon .ill and Breiwton Weaing Company,. 87 NIRi 11 15 (1949) DOMINGLILL VALLEY HOSPTAL 545