Elmcrest Convalescent Hospital

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Convalescent Hospital Management Corp. d/b/a Elm- crest Convalescent Hospital and Hospital and Professional Employees Division , Local 399, Building Service Employees International Union, AFL-CIO, Petitioner . Case 21-RC-10798 September 27, 1968 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Pursuant to a Stipulation for Certification upon Consent Election, executed on April 19, 1968, an election by secret ballot was conducted on June 6, 1968, under the direction and supervision of the Regional Director for Region 21, among the employ- ees in the stipulated unit. At the conclusion of the election, the parties were furnished with a tally of ballots, which showed that, of approximately 38 eligible voters, 36 cast ballots, of which 14 were for the Petitioner, none were for the Intervenor,' 18 were cast against the participating labor organizations, and 4 were challenged. The challenged ballots were sufficient in number to affect the results of the election. Thereafter, on June 13, 1968, the Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Direc- tor conducted an investigation of the challenges and objections, and, on July 24, 1968, issued and duly served upon the parties his Report on Challenged Ballots and Objections, in which he recommended that the challenges to the ballots of Lois Bryan, Mae Rice, and Doris Deane be overruled, and that the challenge to the ballot of Jessie Morales be sustained, but inasmuch as the ballots of Bryan, Rice, and Deane were not determinative of the results of the election, that their ballots not be opened and counted. With respect to the Petitioner's objections, the Regional Director recommended that objections 2 and 3 be overruled, that objection 1 be sustained, and, accord- ingly, that the election conducted on June 6, 1968, be set aside and a second election directed. There- after, the Employer filed timely exceptions to the Regional Director'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 powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. We find, in accord with the stipulation of the parties, that the following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer, including dietary employees, maids, janitors, storekeepers, mainte- nance employees, ground keepers, orderlies, nur- ses' aides, licensed vocational nurses, laboratory helpers and laundry employees; excluding all office clerical employees, professional employees, physi- cians, registered nurses, guards, watchmen and supervisors as defined in the Act. 5. The Board has considered the Regional Direc- tor's Report, the Employer's exceptions, and the entire record in this case, and hereby makes the following findings.' By its objection 1, the Petitioner alleges that the Intervenor published false and misleading material which misrepresented the wage rates in contracts signed by the Petitioner with other nursing home facilities located in the State of California, materially affecting the results of the election. The handbill relied on by the Regional Director in sustaining objection 1 was distributed by the Intervenor on June 5, the day preceding the election, and stated that the "typical" contract entered into between the Petition- er and several Hillhaven Convalescent hospitals con- tained the following extract: 1 Professional , Hospital Employees Union, Local Union No. 986, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America. 2 The Employer excepted only to the Regional Director's finding and conclusion with respect to objection 1. In the absence of exceptions , we adopt , pro forma , the Regional Director 's other findings and conclusions 173 NLRB No. 7 ELMCREST CONVALESCENT HOSPITAL 39 399's WAGE RATES Starting 3 Mo 6 Mo 18 Mo 30 Mo Classification Wage Employ Employ Employ Employ Nurses' Aides $1 40 $145 $150 $1 55 $1.60 Orderly 1.50 1 55 1 60 1 65 1 70 Janitor . ... 1.50 155 1 60 1 65 1 70 Housekeeping 1 35 1.40 1.45 1 50 1 55 Laundry 1 35 1 40 1 45 150 1.55 First Cook .. 1 85 1 90 1 95 2 00 2 05 Cook 1.65 170 1 75 1 80 1.85 Kitchen Helpers 1 35 1 40 1.45 1 50 1 55 LVN ... . 2 25 2 30 2 35 2 40 2.45 The Regional Director found that the extract set forth above did not represent current rates, and that the wage clause in the Hillhaven contract contained a provision requiring that wage rates for the several classifications be adjusted upward in the event of any change in the rates provided for under the California Minimum Wage Law. The Regional Director also found that the California minimum wage rate was increased to $1.65 on February 1, 1969, and that the investigation revealed no evidence that the Petitioner had entered into any contracts providing for wages lower than the minimum rate since that date. Presum- ing that the employees would be fully aware of the $1 65 minimum wage rate, the Regional Director concluded, nevertheless, that the employees might have believed from the contents of the Intervenor's handbill of June 5, that the Petitioner could, and did, negotiate rates that fell below the minimum. Inas- much as the Regional Director concluded that the Intervenor's handbill was distributed at a time which precluded the Petitioner from issuing an effective reply, he recommended that objection 1 be sustained. For the reasons set forth below, we do not agree. The record before us reveals that the issue of the wage rates under the Petitioner's contracts was interjected into the campaign at least a week prior to the election. As the Regional Director found, approxi- mately 1 week before the election the Intervenor issued a handbill which stated, inter alia, that the Petitioner was "still signing contracts calling for as low as $1.35 per hour." However, this misrepresenta- tion was corrected by a letter sent by the Employer to the employees 2 days before the election. The Employer's letter contained references to the wage rates in the Hillhaven contract and the California Minimum Wage Law, and stated. ... as you might guess, nurses' aides start at $1.65 an hour, the minimum wage required by law 3 The Petitioner did not reply to the Intervenor's handbill. Under these circumstances, we cannot agree that the contents of the Intervenor's handbill of June 5 constituted such a substantial misrepresentation or departure from the truth as could reasonably be expected to have a significant impact on the elec- tion.4 Furthermore, in our view, the issue of the wage rates under the Petitioner's contracts was interjected into the campaign sufficiently in advance of the election to allow the employees to make an indepen- dent evaluation of the Intervenor's assertions, and likewise, to allow the Petitioner an adequate opportu- nity to refute any inaccuracies, misstatements, or omissions 5 Accordingly, we shall overrule the Re- gional Director's recommendation as to objection 1, and as the votes cast for the Petitioner and the Intervenor were less than majority of the valid votes cast, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes has not been cast for either Hospital and Professional Employees Division, Local 399, Building Service Employees International Union, AFL-CIO, or Professional, Hospital Employees Union, Local Union No. 986, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, and that neither of the said labor organiza- tions is the exclusive representative of the employees in the unit found appropriate within the meaning of Section 9(a) of the Act. 3 Emphasis as in the original. 4 Hollywood Ceramics Company, Inc , 140 NLRB 221, 224 5 General Electric Company, Specialty Control Department, 162 NLRB No 91