Grundy Hospital, Inc.

GRUNDY HOSPITAL, INC. Grundy Hospital, Inc. and National Union of Hospital and Nursing Home Employees , AFL-CIO/RWD- SU, Local 1199-W. Va. Cases 5-RC-8611 and 5-RC-8612 April 9, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties, and approved by the Regional Director for Region 5 of the National Labor Relations Board on July 12, 1973, an election by secret ballot was conducted in the above-entitled proceeding on August 9, 1973, under the direction and supervision of said Regional Director among the employees in the stipulated unit. At the conclusion of the election, the parties were furnished a tally of ballots in accordance with the National Labor Relations Board's Rules and Regula- tions, Series 8, as amended. The tally showed that, of approximately 112 eligible voters, 109 cast ballots, of which 46 were for, and 57 were against, the Petitioner, and 6 were challenged. The challenged ballots were insufficient in number to affect the results of the election. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. Pursuant to the Board's Rules and Regulations, the Regional Director conducted an investigation of the issues raised by the objections . On September 13, 1973, he issued and duly served on the parties his Report on Objections attached hereto in pertinent part. In his report, the Regional Director recom- mended to the Board that, on the basis of Objection 1, the election conducted on August 9, 1973, be set aside and a second election directed, or, in the alternative, that a hearing be held with respect to the issues raised by Objections 2 through 5. Thereafter, on October 3, 1973, the Employer filed timely exceptions and, on October 4, 1973, supplemental exceptions to the Regional Director's report 1, con- tending that substantial and material issues of fact and law have been raised regarding Objection I which can best be resolved by a hearing. 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, including the exceptions and briefs, the Board finds: 1. The Employer is engaged in commerce within 210 NLRB No. 2 the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Employer within the meaning of Section 9(cXl) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All licensed practical nurses, and all service and maintenance employees including nurses' aides, orderlies, housekeeping and dietary employees employed by the Employer at Grundy Hospital, Grundy, Virginia, but excluding confidential employees, office clerical and technical employ- ees, registered nurses, other professional employ- ees, guards and supervisors as defined in the Act. 5. The Board has considered the Regional Direc- tor's report and the exceptions and briefs, and hereby adopts the Regional Director's findings, conclusions, and recommendations.2 ORDER It is hereby ordered that the election conducted herein on August 9, 1973, be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] I At the request of the Employer, the time for filing exceptions was extended to October 5, 1973. 2 In our opinion none of the Employer's exceptions or su ental exceptions raises any material issue of fact or law which would-warrant reversal of the Regional Director's recommendation that the election conducted herein be set aside on the basis of Objection I, or requires the holding of a hearing. As the Board has held, the existence of an invalid no- distribution rule during the critical period before the election hampers legitimate organizational activity of the employees, prevents a free and uncoerced election, and seriously infringes on laboratory conditions we seek to establish. This is especially true where, as here, the Employer admits that the rule was distributed to the employees less than 2 months before the election, and at the same time the employees were notified that the penalty for breaking the rule was dismissal . Edmont, Inc., 139 NLRB 1528. See also National Electric Coil Division, McGraw-Edimn Ca, 188 NLRB 451. APPENDIX Objection No. I 1. The Employer instituted an unlawfully broad and discriminatorily applied a no-solicitation, no- distribution rule which effectively prevented the Petitioner from communicating with the employ- ees involved in the election. In support of this Objection the Petitioner submit- ted a copy of a booklet entitled, "Your Job & Ours at Grundy Hospital." By letter of August 31 , 1973, the Employer confirmed that this booklet was sent to a printer on June 12, 1973, received in completed form 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on June 18, 1973, and distributed to employees on June 20,1973. On Page 35 of the booklet in a listing of various "Rules" appears the following rule: 22. Distributing written or printed matter of any description on Hospital premises at any time unless approved by the Department Head and the Administrator. The penalty for breaking this rule is dismissal for the first offense. In addition to the above evidence the Petitioner submitted affidavits from employees and copies of letters from the Employer's supervisors demonstrat- ing that this rule was enforced during the election campaign. A photocopy of one such letter is attached hereto as Appendix I. Rule 22 appears on page 35 of the manual and not on page 34 as stated in the Employer's letter. In Stoddard Quirk Manufacturing Co., 138 NLRB 615, 621, the Board ruled that "[a] no distribution rule maintained by [an Employer] is presumptively invalid on its face as applied to employees who may wish to distribute union literature [if ] its reach is not limited to working time or to the working areas of the plant." Further, the Board has held that the mere existence of an invalid no-distribution rule during the critical period before the election prevents a free and uncoerced election even where the Employer has permitted agents of union to disregard the rule. National Electric Coll Division, McGraw Edison Company, 188 NLRB No. 71. See also Glassmaster Plastics, 203 NLRB No. 147. Therefore, the undersigned finds that the no- distribution rule in the instant case is presumptively invalid on its face and recommends that the election conducted on August 9, 1973, be set aside and a second election directed.