George J. London Memorial Hospital

GEORGE J. LONDON MEMORIAL HOSPITAL George J. London Memorial Hospital and Warehouse, Mail Order, Office, Technical and Professional Employees Union, Local 743, Chauffeurs, Ware- housemen and Helpers of America, Petitioner. Case 13-RC-14564 June 9, 1978 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended. a three- member panel has considered the objection to an election held on November 30, 1977,' and the Acting Regional Director's report recommending disposi- tion of same. The Board has reviewed the record in light of the exceptions and briefs, and hereby adopts the Acting Regional Director's finding and recom- mendations. We believe our colleague, who takes a contrary view, places too great an emphasis on one section of an obvious propaganda leaflet, rather than viewing it in context. The leaflet writer's contention that since the Board has issued a complaint "there has to be merit in the case" is considerably less than the bald assertion- as our colleague all but expressly conceives it-that the Board has tried the Employer and adjudged it guilty. The statement regarding the Board's standards for issuing complaints are true. Regional Directors only issue complaints and order hearings if they find some merit in the charge, and our casehandling manual so states. The fact that the writer argues that all of the merit is "in Diane's favor" is clearly the writer's opin- ion and the bias is evident. The leaflet asserts both that a hearing is to be held and that a long delay "could" cost the Employer more money, making it clear that the case had not been adjudicated. We have difficulty comprehending our colleague's construction of the Petitioner's conduct as "impugn- ing the integrity of the Board." Indeed, viewing the leaflet in its entirety we cannot say that there has been any misrepresentation of the Board's actions. And, as we read the dissent, any statement concern- ing the Board's functions, regardless of the accuracy or context in which it is made, would be an attempt "to enlist the Board as an ally" and is therefore oh- The election was conducted pursuant to a Stipulaion for ( ertilfl.lcat Upon Consent Election. The tally was 29 for, and 21 against, the Pelitlller: there were 3 challenged ballots, an insufficient number to affect the results jectionable. But be!olnd ease of administration, we see little to recommend adopting a per se rule. CER TI :ICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Warehouse, Mail Order, Office, Technical and Professional Employees Union. Local 743, Chauffeurs, Warehousemen and Helpers of America. and that, pursuant to Section 9(a) of the Act, the foregoing labor organization is the exclusive representative of all the employees In the following appropriate unit for the purposes of collective bargaining in respect to rates of pay, wag- es, hours of employment. and other terms and condi- tions of employment: All employees of the Employer now located at 4700 North Clarendon. Chicago. Illinois, but ex- cluding all professional employees, registered nurses, licensed practical nurses, business office clericals, medical records clericals, medical doc- tors, psychologists. guards and supervisors as defined in the Act. Mi mII.R M RPt.Ri' dissenting: During the critical period before the election the Petitioner distributed to employees a leaflet stating among other things: . . . the National Labor Relations Board (NLRB) has issued a complaint against the hos- pital for unfair LABOR PRACTICE in the fir- ing of Diane Erickson.... For the Labor Board to issue a complaint and order a hearing, there has to be merit in the case all in Diane's favor. The leaflet then went on to say that the hospital could save money by settling the case "now," for the "longer the dela, and going through a hearing the more it could cost . . . in attorney fees and back pay for Diane." The Employer contends that the fore- going language of the leaflet "is tantamount to misrep- resenting to these [hospital] employees that the NLRB has already adjudged their employer to be guilty of unfair labor practices." The Acting Region- al Director held. and unfortunately my colleagues agree, that the referred-to language was not objec- tionable. I cannot accept this result, for it is perfectly ob- vious that the Petitioner-through its choice of words--did, indeed. as the Employer contends, con- vev the idea that the Employer had been found guilty of an unfair labor practice by the Board. Thus, the language associates the issuance of the complaint with there necessarily being merit all on the employ- ees' side in the unfair labor practice charges., and it 236 NLRB No. 82 797 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also emphasizes the Employer's "guilt" with the al- leged fact that delay in settling the case could result in more backpay for the discharged employee. There is nothing in this presentation which unambiguously conveys to the employees the truth of the matter; i.e.. that the Employer has only been charged with a stat- utory violation which has yet to be proven in a due process proceeding. The whole thrust of the language is to create the impression that the issuance of the complaint has established the fact of the violation. The Petitioner argues, however, that the issuance of the complaint means under Board practice that there must be "merit in the case" and that its refer- ence to a hearing indicated that no final adjudication had yet been made by this Board. But Petitioner's intended audience was not a group of lawyers who, it might properly be assumed, would understand the legal nuances or implications of the words it chose. To the contrary, as the context of the leaflet clearly reveals, "merit" was intended to have its everyday meaning. How else can one explain that such merit was, as the leaflet said, "all in Diane's favor"? Quite obviously the issuance of a complaint does not mean the "merit" is all in anybody's favor. Yet, now the Petitioner asks us to find its conduct proper because in the narrow, technical sense the issuance of a com- plaint does mean the charge has merit. Petitioner is playing word games, and I can see no good reason why the Board should play the straight man and take this rather unsubtle, disingenuous ploy seriously. In any event, it is quite apparent, as I stated above, that the Petitioner sought to convey to the employees the idea that this Board had indeed found that their Employer had violated the Act in discharging Diane Erickson. It thus illicitly sought to enlist the Board as its ally in the partisan stages of the election cam- paign, thereby undermining for its own advantage the Board's neutrality in the minds of interested em- ployees. Such conduct is, as this Board has held, clearly objectionable,2 and I fail to understand why my colleagues here as well as in other cases have without censure permitted parties on various occa- sions to compromise the Board's neutrality.3 Any conduct which can be construed as impugn- ing the integrity of the Board or its processes cannot be countenanced, for, like Caesar's wife, the Board must be above suspicion. There is no legitimate need or basis for a party's attempting to enlist the Board as an ally in any election campaign, and it seems only too obvious to me that the only way that such impermissible conduct can be prevented is for this Board to consistently condemn it whenever and wherever it appears as a part of a party's campaign activities.4 Consequently, I would, as stated above, find the Union's conduct here under consideration to be patently objectionable and thus would set aside the election and direct that another be held. 2 Formco, Inc.. 233 NLRB 61 (1977). See. for example. Monmouth Medical Center. 234 NLRB 328 (1978). where a Board majority, contrary to the position I took in my dissent, held unobjectionable union campaign propaganda implying in effect the Board was prounion by stating the Board's attorneys had their own union and by telling employees to call the Board when faced with employer claims con- tradicting union campaign statements. See also Provincial House, Inc. 221 NLRB 5 (1975). There a Board majority held unobjectionable a union representative's holding a campaign meeting in the same room where a Board agent was taking down affidavits with respect to certain alleged un- fair labor practices and his introducing the agent to the assembled employ- ees I dissented and in a related enforcement proceeding the court agreed with mn position and found the conduct improperly compromised the Board's neutrality). It thus refused to enforce a Board bargaining order based on the certification in the representation proceeding. Provincial House, Inc. v. N.L R.B., 568 F.2d 8 (C.A 6, 1977). ' If we accept the Board's Rules and Regulations as defining the proper use of words in nonlegal contexts, as in an election campaign. then perhaps the Union's statement was, as my colleagues claim, literally true. However, their further claim that there was no misrepresentation rather reminds me of the story, perhaps apocryphal, of the processor of canned vhite salmon. His product was moving slowly, if at all, in a market accustomed to its canned salmon beingpink. In an attempt to offset this advantage, he had printed in large letters on his labels: "This Product Guaranteed Not To Turn Pink in the Can"--a wholly true claim! Also, I rather reluctantly deny my colleagues' accusation that I am in effect attempting to apply a per se rule, for I am largely convinced that quite apart from "ease of administration" such a rule would be desirable as a means of discouraging parties from attempting by various subtle and not so subtle means to compromise this Board's neutrality in election situations. 798