Vernon Convalescent Center Co.

VERNON CONVALESCENT CENTER CO. 439 Vernon Convalescent Center Company and National Union of Hospital and Nursing Home Employees Local 1199H, Retail Wholesale and Department Store Union, AFL-CIO, Petitioner. Case 9-RC-9164 December 6, 1971 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY Pursuant to a Stipulation for Certification Upon Consent Election, a secret ballot election was con- ducted among the employees in the stipulated unit described below. The tally of ballots furnished' the parties showed that of approximately 40 eligible voters, 26 cast valid ballots, of which 18 were for the Petitioner, 3 were for the Intervenor,' and 5 were against participating labor organizations. There were 3 challenged ballots, which were insufficient to affect the results. Thereafter, the Employer filed timely objections to conduct affecting the results of the election. On October 28, 1971, the Regional Director issued and served on the parties his Report and Recommen- dations on Objections, attached hereto, recommend- ing that the objections be overruled in their entirety and Petitioner be certified as the exclusive collective- bargaining representative in the stipulated unit. Thereafter, the Employer filed timely exceptions to the Regional Director's report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its power in connection with this proceeding to a three- member panel. Upon the entire record in-this proceeding, 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 represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated and we find that the following employees constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All service and maintenance employees employed by the Employer at its 515 Melish Avenue, Cincinnati, Ohio Nursing Home, including Activi- 194 NLRB No. 67 ties Director, BUT excluding all office clerical employees, Registered Nurses (RN's), Graduate Licensed Practical Nurses (GLPN's), Licensed Practical Nurses (LPN's), head cook, second cook, third cook, dietician, physical therapist aid and all other supervisors, professional employees, and guards as defined in the Act. 5. The Board has considered the objections, the Regional Director's report,2 and the Employer's exceptions and brief and hereby adopts the Regional Director's findings, conclusions, and recommenda- tions. As the Petitioner has received a majority of the valid ballots cast, we shall certify it as the exclusive bargaining representative of the employees in the unit found appropriate. CERTIFICATION OF REPRESENTATIVE It is hereby certified that National Union of Hospital and Nursing Home Employees Local 1199H, Retail Wholesale and Department Store Union, AFL-CIO, has been designated and selected by a majority of the employees in the unit found appropriate in paragraph 4, above, and that, pursuant to Section 9(a) of the Act, the said labor organization is the exclusive representative of all such employees for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 1 Service, Hospital, Nursing Home and Public Employees Union, Local 47, Service Employees International Union, AFL-CIO. 2 In agreeing with the Regional Director that the distribution of the marked sample ballot by the defeated Intervenor did not interfere with the election under the Allied Electric rule, 109 NLRB 1270, 1272, we note that the conduct involved was neither by the party who was successful in the election (ibid.) nor of such a nature as to suggest to the voters Board partisanship in favor of the choice receiving a majority of the votes (cf. Showell Poultry Company, 105 NLRB 580). The Employer's construction of the cases cited in its brief clearly misstates the import of each holding, none of which , contrary to the Employer's apparent view, contains any implication that the Board intended in Allied Electricto adopt a per se rule which would apply without question to circulation of a marked ballot by anyone under all circumstances regardless of possible impact on the voters. REPORT ON ELECTION OBJECTIONS TO ELECTION and RECOMMENDATIONS TO THE BOARD Pursuant to the provisions of a Stipulation for Certification Upon Consent Election, herein called the Stipulation, approved by the Regional Director on September 3, 1971, an election by secret ballot was 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conducted on October 8, 1971, among "certain employees' of the Employer to determine whether such employees desired to be represented for the purposes of collective bargaining by the above-named Petitioner, or by the above-named Intervenor, or by neither. Upon the conclusion of the election, a Tally of Ballots 2 was furnished to the parties in accordance with the Rules and Regulations of the National Labor Relations Board, herein called the Rules and the Board, respectively, showing the following results: Approximate number of eligible voters 40 Void ballots 0 Votes cast for Petitioner 18 Votes cast for Intervenor 3 Votes cast against participating 5 labor organizations Valid votes counted 26 Challenged ballots 3 Valid votes counted plus challenged ballots 29 The challenged ballots are not sufficient in number to affect the results of the election. On October 13, 1971, the Employer filed timely objections to conduct affecting the results of the election, herein called the Objections, which were duly served upon the Petitioner and the Intervenor in conformity with the Rules. Pursuant to the provisions of Section 102.69 of the Rules, an investigation of the issues raised by the Objections was conducted under the supervision and direction of the Regional Director who, after consid- ering the results thereof, makes the following report and recommendations: The Objections The Employer's Objections allege in substance, that: 1. Shortly before the date of the election, the Intervenor mailed to the homes of eligible employees or otherwise distributed to them a letter together with a reproduction of the Board's official secret ballot used in said election. The reproduced ballot was marked to indicate the selection of the Intervenor as I The appropriate collective bargaining unit set forth in the Stipulation is as follows- "All service and maintenance employees employed by the Employer at its 515 Melish Avenue, Cincinnati, Ohio Nursing Home, including Activities Director, BUT excluding all office clerical employees, Registered Nurses (RN's), Graduate Licensed Practical Nurses (GLPN's), Licensed Practical Nurses (LPN's), head cook, second cook, third cook, dietician, physical therapist aid and all other supervisors, professional employees, and guards as defined in the Act." the bargaining agent in violation of the Allied Electric Products rule. 2. For the above reasons and others which may be revealed in the course of the investigation, the election should be set aside. Objection No. 1: In support of this Objection, the Employer submit- ted a copy, of the sample ballot mailed by the Intervenor to the bargaining unit employees together with the Intervenor's letter which accompanied the ballot. (Attached hereto as Exhibits 1 and 2, respec- tively). The sample ballot in question is a reproduc- tion of the official secret ballot in which the choice "Service, Hospital, Nursing Home and Public Em- ployees Union, Local 47, Service Employees Interna- tional Union, AFL-CIO" is marked with an "X". The Employer's contentions are set out in a letter which reads substantially as follows: The Employer contends that the distribution of a reproduced official secret ballot of the Board that has been marked to indicate the selection of one of the Unions on the ballot violates the rule set forth in Allied Electric Products, 109 NLRB 1270 and subsequent cases. The essence of the Allied Electric rule requires that this election be set aside because the issuance here of the marked sample and the official secret ballot used by the Board in the October 8 election carried with it the improper implication that the Board favored the selection of a Union in the election. (Emphasis supplied) The Employer further contends that the improper action of the Intervenor should be equated with the Board's treatment of improper conduct by third parties, and that even though the Intervenor was not the successful party in the election, its improper conduct nevertheless requires setting aside the results of the election. The Petitioner asserts that, even though a marked sample ballot was distributed to all employees, the rule that such conduct is objectionable is not controlling in the present situation because the successful party (the Petitioner) did not distribute the ballot. The Petitioner, in other words, takes the position that the election should not be set aside because the successful party in the election did not engage in the conduct which is the basis of the Objection. The Intervenor submitted no evidence and takes no position on the Objection. 2 Service of the Tally of Ballots was acknowledged by authorized observers of the Employer and the Petitioner. A copy of the Tally of Ballots was served on the Intervenor by registered mail. Authorized observers of each party certified that the balloting was fairly conducted, that all eligible voters were given an opportunity to mark -their ballots in secret and that the ballot box was protected in the interest of a fair and secret vote. VERNON CONVALESCENT CENTER CO. 441 The Board had occasion to reaffirm its rule governing the reproduction of marked, official sample ballots, by parties to an election, in Allied Electric Products, Inc., supra. The Board there said: Upon consideration, the Board has decided that in the future it will not permit the reproduction of any document purporting to be a copy of the Board's official ballot other than one completely unaltered in form and content and clearly marked "sample" on its face, and upon objections validly filed, will set aside the results of any election in which the successful party has violated this rule. (Emphasis supplied). It is clear in this case, that the distribution of the marked official sample ballot was not made by the "successful party". Absent a showing that the Peti- tioner was responsible for the distribution of the marked sample ballot, the Employer can not invoke the Allied Electric rule. The Regional Director therefore concludes that Objection No. 1 raises no substantial or material issue affecting the results of [See 442 and 443 for Exhibits 1 and 2.1 the election and recommends that it be overruled.3 Objection No. 2: The Employer offered no evidence in support of this Objection other than the evidence considered under Objection No. 1 and no evidence was revealed during the investigation. Accordingly, it is recommended that Objection No. 2 be overruled. Audubon Cabinet Co., 119 NLRB 349. Conclusions and Recommendations.- For the reasons set forth fully above, the Regional Director concludes that the Employer's Objections raise no substantial or material issues affecting the results of the election. It is, therefore, recommended that the Board overrule the Objections in their entirety. As'the Tally of Ballots discloses that the Petitioner received a majority of the valid votes cast, it is further recommended that the Board issue an appropriate Certification of Representative. 3 The Board has consistently followed this rule. See Hughes Tool Company, 119 NLRB 739. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EXHIBIT I UNITED STATES OF AMERICA NATIONAL LABOR RELATIONS BOARD OFFICIAL SECR BALLOT T FO TAIN E F O . VERNON ESC ii C innati Ohio This ballot is to determine the collective bargaining representative, if any, for the unit in which you are employed. MARK AN V' IN THE SQUARE OF YOUR CHOICE SERVICE, HOSPITAL, NEITHER NATIONAL UNION OF NURSING HOME AND PUBLIC HOSPITAL AND NURSING EMPLOYEES UNION, LOCAL HOME EMPLOYEES LOCAL 47, SERVICE EMPLOYEES 1199H, RETAIL, WHOLE- INTERNATIONAL UNION9 SALE AND DEPARTMENT AFL--CIO STORE UNION9 AFL--CIO DO NOT SIGN THIS BALLOT. Fold and drop in ballot box. If you spoil this ballot return it to the Board Agent for a new one. EXHIBIT 1 VERNON CONVALESCENT CENTER CO. EXHIBIT 2 443 DEAR EMPLOYEE; THANK YOU FOR YOUR FULL COOPERATION IN TALKING WITH US ABOUT OUR UNION. LOCAL 47 #. WE REALIZE THIS IS A GREAT EFFORT IN YOUR BEHALF AND THAT WITHOUT YOUR HELP WE COULD NOT REACH OUR GOAL IN HELPING ALL CONCERNED. MAY WE COUNT ON YOU TO ASSIST US IN VOTING FOR LOCAL 47 # ON OCTOBER 8TH. ENCLOSED YOU WILL FIND A SAMPLE BALLOT OF THE ELECTION. WE WILL BE CONDUCTING A MEETING WED. OCT. 6TH AT THE CINCINNATI HEALTH CENTER AT THE CORNER OF BURNET & MELISH. THE FIRST MEETING WILL BE HELD AT I: PM . THE NEXT ONE AT 5:30 PM. MAKE A LIST OF ALL THE QUESTIONS YOU WANT ANSWERED AND ASK THEM WE ARE THERE TO ANSWER THEM FOR YOU. REMEMBER THAT YOU THE EMPLOYEE ARE THE DRIVERS AND WE ARE THE CARS. SO LET US WORK FOR YOU. SUPPORT THE LOCAL THAT HAS YOUR INTEREST AT HEART. Local 47 # REPRESENTATIVES OF LOCAL 47#