Mommouth Medical Center

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monmouth Medical Center and Hospital Profession- als and Allied Employees of New Jersey, Petition- er. Case 22-RC-7125 January 20, 1978 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS JENKINS, PENELLO, AND MURPHY Pursuant to the terms of a Stipulation for Certifica- tion Upon Consent Election approved by the Re- gional Director for Region 22 on May 2, 1977, an election by secret ballot was conducted on June 16, 1977, under the Regional Director's direction and supervision among employees in the stipulated unit, which was comprised of two voting groups.' At the conclusion of the election, the parties were furnished with a tally of ballots which showed that, of approximately 320 eligible voters in Voting Group A, 284 cast valid ballots, of which 148 were for and 136 were against the Petitioner. Four ballots were chal- lenged, a number insufficient to affect the results of the election.2 Thereafter, the Employer timely filed three objections to conduct affecting the results of the election with regard to Voting Group A. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation, and, on August 12, 1977, issued and duly served on the parties his Report on Objections. His report recommended that the Employer's Objections 2 and 3 be overruled. However, with regard to Objection 1, which alleged in effect that the Petitioner improperly involved the Board and its processes, the Regional Director recommended that said objection be sus- tained in part and overruled in part. Thereafter, both the Petitioner and Employer filed timely exceptions and supporting briefs.3 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. 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 organization involved claims to represent certain employees of the Employer. l Voting Group A consisted of all full-time and regular part-time registered nurses and graduate nurses. Voting Group B comprised all full- time and regularpart-time technical employees. 2 In Voting Group B, a majority of valid ballots cast by eligible voters were not cast for the Petitioner. On July 11, 1977, the Regional Director issued a Certification of Results of Election in Voting Group B. 3 The Employer also filed a letter with the Board, which has been duly considered. 234 NLRB No. 50 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees of the Employer constitute a unit appropriate for the purpose of collective bar- gaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time registered nurses and graduate nurses employed by the Employer at its Long Branch, New Jersey, medi- cal facilities, including clinical nurse specialists, epidemiologist, IV nurses, nurse anesthetist, home training nurses-renal dialysis, and charge nurses (except charge nurse in anesthesiology, cardiac- catheterization and radiology), but excluding head nurses, assistant head nurses, charge nurse in anesthesiology, cardiac-catheterization and ra- diology, administrative assistants, staff develop- ment coordinators, patient services coordinators, HIS coordinator, utilization review coordinators, coordinator of medical audit, coordinator-hyper- tension, assistant director perinatal education, clinical research assistants, coordinator-consumer education, nursing care coordinators, operating room supervisor, and all other professional em- ployees, technical employees, service and mainte- nance employees, office and laboratory clerical employees, guards and supervisors as defined in the Act, and all other employees. 5. The Board has considered the Regional Direc- tor's report, the exceptions thereto, and the parties' briefs and filings, and hereby adopts the Regional Director's findings, conclusions, and recommenda- tions4 only to the extent consistent herewith. In Objection 1, the Employer contends that the "Petitioner misused and abused the National Labor Relations Board's processes to secure a partisan advantage [by] represent[ing] to unit employees that the National Labor Relations Board endorsed Peti- tioner in the election" among the employees in Voting Group A. In support thereof, the Employer submitted six of the Petitioner's campaign leaflets and pamphlets as exhibits (lettered A through F and described below). The Regional Director concluded that Exhibits A and B were not objectionable but that Exhibits C, D, E, and F were. The Employer 4 The Employer's exceptions relate in part to the Regional Director's recommendation that Objections 2 and 3 be overruled We find no merit in the Employer's exceptions regarding those objections. Accordingly, we adopt the Regional Director's recommendation that those objections be overruled. 328 MONMOUTH MEDICAL CENTER excepted to the Regional Director's conclusions regarding Exhibits A and B, and the Petitioner excepted likewise with respect to Exhibits C, D, E, and F. In its recent decision in Shopping Kart Food Market, Inc.,5 the Board 6 reaffirmed its concern regarding the potential for abuse of the Board's processes by parties during an election campaign. The Board stated: . . . Board intervention [by setting aside an election ] will continue to occur in instances where a party has engaged in such deceptive campaign practices as improperly involving the Board and its processes . .. . The first and predominant type of involvement of the Board and its processes which the Board has found objectionable is the reproduction and alteration of an official Board election ballot.8 In one such case, Allied Electric Products, Inc.,9 the Board stated that it must preserve "an atmosphere of impartiality" in elections that it conducts. The Board then set forth the following policy to which it has continued to adhere: The Board particularly looks with disfavor upon any attempt to misuse its processes to secure partisan advantage, and especially . . . believe[s] that no participant in a Board election should be permitted to suggest either directly or indirectly to the voters that this Government Agency endorses a particular choice.10 In light of this general policy and its reaffirmance in Shopping Kart, we now examine each of the alleged objectionable campaign materials. Exhibit A is a pamphlet prepared by the Board which contains information for voters in Board elections. During May 1977,11 approximately 1 month before the election, the Petitioner distributed to the employees several of these pamphlets upon which the Petitioner marked in hand-printing and 5 228 NLRB 1311 (1977). 6 Chairman Fanning and Member Jenkins dissented in part on other grounds. Id. at 1313 (emphasis supplied). ' See Allied Electric Products, Inc., 109 NLRB 1270 (1954). See also Certain-Teed Products Corporation, 173 NLRB 229 (1968); Custom Molders of P. R. and Shaw-Harrison Corporation, 121 NLRB 1007, 1009 (1958). Cf. Triangle Super Dollar Market, 225 NLRB 403 (1976); Associated Lerner Shops ofAmerica, Inc., 207 NLRB 348 (1973). o Supra at fn. 8. 'o Id. at 1271-72. The Board has also found other types of election conduct to improperly involve the Board and its processes. See cases cited infra at fns. 14, 16, and 17, as well as Mallory Capacitor Company. a Division ofP. R. Mallory& Co., Inc., 161 NLRB 1510(1966). n' All dates herein are in 1977. 12 199 NLRB 459(1972). 13 Id. at 459. ink the following comments on the top of the front page: Vote Yes June 16 MMC Auditorium 4-9:30, 10:30-1, 2-8. The Regional Director found that the Petitioner's hand-printing of comments on Exhibit A did not constitute objectionable conduct. Consistent with the Board's decision in A. Brandt Company, Inc.,12 the Regional Director found that the comments "could not reasonably be construed by the employees as part of the [Board's publication] but were readily identifiable by them as partisan comment emanating from the . . . Petitioner . . . in relation to the election campaign." 1 3 Moreover, the Regional Direc- tor noted that the Petitioner mitigated any possible misleading impact of the comments on Exhibit A by subsequently mailing unmarked copies of the pam- phlet, unaccompanied by any partisan campaign material, to most of the employees in Voting Group A several weeks prior to the election. We agree with the Regional Director's conclusion that the opinion in A. Brandt Co. controls our decision herein regarding Exhibit A. Although we do not condone the use of Board-published pamphlets, guides, or documents as a vehicle to disseminate partisan campaign statements,1 4 we do not view the Petitioner's comments herein to have "suggest[ed] either directly or indirectly to the voters that [the Board] endorses a particular choice." 1 5 Accordingly, we conclude that Exhibit A did not improperly involve the Board or its processes. However, the Board will continue to closely scrutinize a party's partisan use of Board documents, whether of a formal or merely informational nature, and will set aside an election where a party fails to disassociate adequately its own partisan remarks from the con- tents prepared by the Board.16 Exhibit B is a letter mailed to employees in Voting Group A about a week prior to the election. The 14 See Thiokol Cthemical Corporation, Hall-Way Piant, 202 NLRB 434 (1973). In that case, the Board stated that it "should not and cannot allow its official documents [referring in that case to a Board publication entitled "A Layman's Guide to Basic Labor Law Under the National Labor Relations Act" I which are designed to provide complete and unbiased information to employees, employers, and the public to be appropriated by any party in a partisan manner." Id at 434. However, the Board did not base its decision in Thiokol to set the election aside solely on the use of the guide for partisan purposes. Rather, "the gravamen of the Employer's objectionable conduct . . was that it chose to reprint the outdated 1962 document rather than the 1970 document which accurately expresses the current state of the law as to reemployment rights of economic strikers," (id) an issue inserted into the campaign by the employer. Member Penello, however, does not find it necessary to rely on this case in reaching his conclusions herein. i5 Allied Electric Products, Inc., supra at 1272. is See J. Ray McDermott & Co., Inc., 215 NLRB 570 (1974), where the Board found objectionable a union's distribution of a reprinted official (Continued) 329 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer objected to certain portions of the letter which referred to an upcoming hearing regarding an unfair labor practice complaint issued by the Board against the Employer. The letter stated in part: On June 13th, there will be a hearing at the National Labor Relations Board regarding the unfair labor practices charged against the hospital by members of your Steering Committee. The NLRB conducts such hearings only after investi- gation and rendering merit to such charges. [Em- phasis supplied.] The Employer contends that the words "rendering merit to such charges" misstated the Board's proce- dures regarding the standard upon which the Board must rely in issuing a complaint, and, therefore, improperly involved the Board and its processes. The Regional Director found that Exhibit B was not objectionable. He noted that, technically, a complaint is issued by the General Counsel on the basis of reasonable cause to believe that an unfair labor practice has been committed. The Board does not find merit unless the General Counsel, at a hearing, establishes by a preponderance of the evidence that the Act has been violated. However, the Regional Director concluded that the portions of Exhibit B to which the Employer objected were, "at most, inartfully drafted, [and] not the type of misstatements of Board procedures which would so mislead the voters . . . as to warrant setting the election aside." Moreover, the Regional Director stated, the Petitioner's statement contained the words "charges" and "hearings," thereby mitigating any possible misleading implication that the Board had already found merit in the unfair labor practice complaint. We agree with the Regional Director's recommen- dation to overrule Objection 1 with respect to Exhibit B. Unlike the Board's decision in Dubie-Clark Co., Incorporated, 17 the Petitioner did not substantially or patently mischaracterize Board documents or pro- ceedings for partisan election purposes.18 Rather, as the Regional Director concluded, the Petitioner merely "inartfully drafted" its comments regarding the pending unfair labor practice complaint against the Employer which could not have reasonably had an impact on the election.' 9 Thus, we conclude that telegram from a Regional Director in which the union inserted a partisan message immediately above the Regional Director's signed name. See also Rebmar, Inc., 173 NLRB 1434 (1968) (Member Jenkins dissenting), where the union distributed a handbill on the front of which it reprinted a Board election notice and on the reverse side printed, inter alia, an explanation of a union's function. The majority of the Board in Rebmoar set the election aside because the handbill "may [have been ) interpreted by the employees as an endorsement by the Board of one of the parties to the election .... " Id. at 1434. IT 209 NLRB 217 (1974). See also Jobbers Warehouse Service, Inc., 210 NLRB 1038 (1974). Exhibit B did not improperly involve the Board and its processes. Exhibit C is a letter mailed by the Petitioner to employees in Voting Group A in late March, approximately 8 weeks before the election. In partic- ular, the Employer objects to portions of two paragraphs which state: CAN THEY MAKE IT ROUGH ON ME IF I SHOW INTEREST IN A UNION? No! . . . The hospital would be risking an unfair labor practice charge if they took such reckless action [as discriminating against employ- ees because of union activities ]. WHAT CAN HAPPEN TO THOSE WHO COMMIT AN UNFAIR LABOR PRACTICE? The law provides that those who commit such violations of the Labor Act can be fined up to $5000.00 and possibly imprisoned up to one year, or both. The Petitioner has obviously misstated the law. Board remedies are remedial in nature only, and not punitive.20 The Employer contends that these portions of Exhibit C, when eventually considered by its employ- ees in light of the unfair labor practice complaint which the Board issued against the Employer ap- proximately 3 weeks prior to the election, created the false impression in the minds of the employees that the Employer's agents were charged with and could possibly be found guilty of criminal conduct. The Regional Director agreed and concluded that the Petitioner improperly injected the Board and its processes into its campaign. The Petitioner excepted to the Regional Director's conclusion regarding Exhibit C, contending that such a result does not contravene the policy set forth in Allied Electric Products, supra, and its progeny. We find merit in Petitioner's exceptions. Statements regarding prescribed sanctions against a violator of the Act (whether accurate or not) do not involve the Board or its processes. Rather, as a general rule, we shall continue to apply the Allied Electric Products 18 See Applegate Lane, Inc., d/b/a Silver Lane Pavillion Convalescent Home, 230 NLRB 73 (1977). Member Penello agrees with his colleagues that the Petitioner's comments regarding the unfair labor practice complaint are not objectionable. However, in reaching his result, he does not rely on Dubie-Clark or Jobber's Warehouse, cases in which he dissented. Is See Howard Manufacturing Company, Inc., 219 NLRB 638 (1975). 20 Republic Steel Corporation v. N.LRB., 311 U.S. 7, 10-12 (1940); Heckl, Inc., 191 NLRB 886, 889 (1971). It appears that Petitioner mistakenly referred to the criminal sanctions in Sec. 12 of the Act which are applicable not to unfair labor practices but to willful interference with an agent of the Board in the performance of his duties. 330 MONMOUTH MEDICAL CENTER doctrine only in situations where the Board's neutral- ity is put in issue2 1 or where a Board document or proceeding is involved.2 2 Neither situation is present with respect to Exhibit C. Moreover, we do not believe that that exhibit could have reasonably had an impact on the election. Exhibit D is a handbill which the Petitioner circulated to the employees prior to the election. The Employer objected to two paragraphs contained therein which state: Something to think about: The attorneys and agent of the National Labor Relations Board, to whom the hospital and the employees are subject to regarding collective bargaining, ARE UNION- IZED themselves. These people, who are privy to more information than anyone else regarding unions have chosen to unionize years ago. When the experts have chosen this particular method, can it really be the wrong one? The Employer contends that Exhibit D injected the Board into the campaign and misled the employees into believing that the Board favored the Petitioner. The Regional Director concluded that the above- quoted portions of Exhibit D, although not totally accurate, did not affirmatively state either directly or indirectly that the Board favored the Petitioner. However, he concluded that Exhibit D improperly placed the Board in a partisan position when viewed in light of the Petitioner's statements contained in Exhibits E and F. Thus, in order to properly consider the Regional Director's conclusions regarding Exhib- it D, we shall first consider the two remaining exhibits. Exhibit E is also a letter which was mailed to the employees on May i, about 7 weeks before the election. The thrust of the letter was that the Employer had misled the employees on several campaign issues, such as benefits, union dues, proba- bility of strikes, and internal union affairs. A portion of the final paragraph stated: When something you hear from the anti-union people contradicts what union organizers have told you, there is an easy way to find out who is telling the truth. Just call the Officer of the Day at the National Labor Relations Board at 645-2100. Exhibit F is another letter mailed by the Petitioner on or about May 20, 4 weeks prior to the election. The letter stated in part: If you doubt in any way information given you by the [hospital] administration or by a represen- 21 See, e.g., J. Ray McDermott & Co., Inc.. supra. 22 See, e.g.. Thiokol Chemical Corporation, supra, Mallory Capacitor Company, supra. tative of the union, we urge you to call the National Labor Relations Board at 645-2100 to verify what you've been told. The Regional Director first noted that one of the roles of the Board's Officer-of-the-Day is to answer the public's questions as to representation and unfair labor practice matters within the scope of the Act. The Officer-of-the-Day, however, does not have the authority or expertise to give information to the public on subjects such as a particular union's dues or internal affairs, or whether representation by a union can result in greater benefits to certain employees than if they remained unrepresented. Thus, the Regional Director stated, it would be an abuse of the Board's role as a neutral party to comment on the veracity of the campaign statements of either party. The Regional Director concluded that, by mailing these two exhibits, the Petitioner improperly injected the Board into the election campaign and suggested that the Board would respond to the employees' questions in a manner favorable to the Petitioner. We disagree. While it is true that the Board's agents, including its Officers-of-the-Day, will not answer questions regarding factual matters at issue in an election campaign, the Board, by its very nature, is a third party to an election and is inextricably involved therein. Therefore, it is not objectionable for either party to an election to refer employees to the Board for answers to their questions. Nor does referral to the Board become objectionable simply because the Board, in order to retain its neutrality, must refuse to answer a question regarding local issues in a cam- paign. Thus, we find that the Petitioner neither created the impression that the Board favored the Petitioner in the election 23 nor disturbed the "atmo- sphere of impartiality." Additionally, we also note that no Board document or proceeding was involved. In these circumstances, we conclude that the Peti- tioner did not improperly involve the Board by distribution of Exhibits E and F. Finally, we return to our consideration of Exhibit D. The Regional Director concluded that, when viewed in light of Exhibits E and F, the Petitioner's comments regarding unionization of Board attorneys improperly placed the Board in a partisan position. However, in light of our findings above regarding Exhibits E and F, and the fact that, as a matter of public record, the Board's attorneys (other than supervisors) are in fact represented by a labor organization, we also find that Exhibit D neither placed the Board in a partisan position nor disturbed 23 See Skaggs Drug Centers, Inc., 197 NLRB 1240, 1247-4 (1972). 331 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the election's "atmosphere of impartiality." In these circumstances, we conclude that said exhibit did not improperly involve the Board in the election cam- paign. Accordingly, we overrule the Employer's Objection I in its entirety and shall issue the following certification. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Hospital Professionals and Allied Employees of New Jersey, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all employees in the unit found appropriate herein for the purposes of collec- tive bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. MEMBER MURPHY, dissenting in part: Contrary to my colleagues, I would find in agree- ment with the Regional Director and substantially for the reason he gives in his report that the Petitioner-through the distribution of certain hand- bills and letters attached to the Regional Director's report as Exhibits D, E, and F-improperly sought to place the Board in a partisan position with respect to the election and thereby engaged in objectionable conduct requiring that the election among the profes- sional employees be set aside.2 4 The language objected to is quoted in full in the majority decision, and very briefly it involved the Union's drawing employee attention to the fact that Board lawyers and agents-"the experts"-have "selected union representation for themselves" (Exh. D) and its directing employees to call the Board 24 The Regional Director also found merit in the Employer's objections to the extent they relate to the Union's misstatement that persons who commit unfair labor practices are subject to certain criminal penalties under the Act. I agree with my colleagues' reversal of the Regional Director on that point for, in agreement with the Petitioner, I cannot see how or why the particular misstatement here involved would affect the election results. when faced with antiunion claims contradicting what the Union has told them (Exhs. E and F). Clearly, through the disputed language the Petitioner was seeking to bring the Board into the election proceed- ing in a manner wholly unrelated to the Board's statutory functions in conducting an election and in protecting employee rights under the Act. Contrary to the position taken by the majority, it is obvious that the Union through the disputed lan- guage was stating, in an unambiguous manner, that the Board "through its unionized attorneys and agents" is prounion and that what the Union tells the employees "must be true because the Board will verify" its statements. That the Board will not do so is hardly relevant, for it is the likely impact on employees of the Petitioner's misleading campaign propaganda involving this Board that is of concern here. The impact remains unaffected by the truth unless the unrealistic assumption is made that a substantial number of employees will call the Board and learn the truth-i.e., that the Board will not get involved in partisan matters. But even if the employ- ees did look behind such campaign propaganda, that would not justify or render innocuous the Petitioner's gratuitous and improper attempt to make the em- ployees believe this Board is not impartial. Consequently, as such statements would tend to mislead employees with respect to the Board's fair and impartial role in an election procedure and as a means of discouraging such attempts to compromise the Board's impartiality, I would, as I have stated above, adopt the Regional Director's conclusion that the language in issue constituted objectionable con- duct 25 and would therefore set aside the election held on June 16, 1977, among the professional employees. I would schedule a new election as soon as possible. 25 Compare Formco, Inc., 233 NLRB No. 5 (1977), where the Board stated: "Our concern is with the protection of our own processes, lest any voter be left with the impression that this Board is biased in favor of any party in an election. We are unwilling to condone any campaign statement which even implies such bias." 332