Medical Ancillary Services, Inc.

582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Medical Ancillary Services , Inc. and Office and Pro- fessional Employees International Union, Local 10, AFL-CIO.' Case 7-CA-90621 July 29, 1974 SUPPLEMENTAL DECISION AND ORDER AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS, KENNEDY, AND PENELLO On February 1, 1972, the National Labor Relations Board issued its Decision and Order 3 in the above- entitled proceeding, finding that Respondent had en- gaged in and was engaging in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act and ordering that it cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appro- priate unit.4 Enforcement of the Board's Order was denied on April 30, 1973, by the United States Court of Appeals for the Sixth Circuit.' The court held that "the Board erred in failing to find that the company [Respondent] was entitled to a hearing before the Board on its exceptions to the election, and conse- quently in finding the company [Respondent] guilty of violating the Act." 6 Accordingly, the court vacated i Hereinafter referred to as the Union 2 In its Order dated June 29, 1973, the Board consolidated the underlying representation case (Case 7-RC-10583) with the unfair labor practice pro- ceeding before it Therefore, in his Decision, the Administrative Law Judge included the case numbers of both proceedings in the caption The Board's original consolidation is withdrawn since the issues involved in this proceed- ing are best resolved within the framework of the unfair labor practice proceedings . N L R B v Addison Shoe Corporation, 450 F 2d 115 (C A 8, 1971), Graphic Arts Finishing Co, Inc, 182 NLRB 318 (1970) The caption of the case is hereby amended to delete "Case 7-RC-10583 " ' 195 NLRB 290 4 The appropriate unit is All office and clerical employees at the Respondent's 5600 Crooks Road, Troy, Michigan, place of business, includ- ing evaluators, billing data typists , auto typists, file clerks, computer opera- tors, mailroom, stockroom, and communications employees , but excluding confidential employees , professional employees , guards , and supervisors as defined in the Act 5 N L R B v. Medical Ancillary Services, Inc, 478 F 2d 96 (C A 6, 1973) 6 Pursuant to a Stipulation for Certification Upon Consent Election issued on June 17, 1971, an election by secret ballot was conducted on July 8, 1971 Fifty-one ballots were cast for the Union and forty-nine votes were cast against the Union , there were no challenged ballots Thereafter , Respondent filed timely objections to the election The Regional Director issued his report on August 3, 1973, overruling the objections in their entirety and recommending that the Board certify the Union as the exclusive bargaining agent Therafter, Respondent filed exceptions to the report On October 12, 1971, the Board issued its Decision and Certification of Representative in Case 7-RC-10583 finding that Respondent's exceptions "raise no substantial issue of fact or law which would warrant reversal of the Regional Director's findings and recommendations " and certifying the Union Pursuant to charges filed by the Union on October 27, 1971, the General Counsel issued a complaint on October 29, 1971, alleging Respondent violated Sec 8(a)(5) and (1) of the Act. Respondent, in its answer, admitted that it refused to the Board's Decision and Order adopting the Region- al Director's report, and remanded the case to the Board "with directions that the company [Respon- dent] be afforded a full adversary hearing upon its exceptions to the Regional Director's Report." There- after the Board issued an order consolidating Case 7-CA-9062 with Case 7-RC-10583,' remanding the proceeding to the Regional Director, and directing that a hearing be held before an Administrative Law Judge, who should prepare and serve on the parties at the conclusion of the hearing a decision containing findings of fact, conclusions of law, and recommenda- tions. Following a hearing held on September 20 and 25, 1973, at which all parties were represented, Adminis- trative Law Judge Sydney S. Asher issued his Deci- sion on November 7, 1973, finding merit in Respondent's objections to the election. The election held on July 8, 1971, the certification of the Union based thereon, and the Board's finding that Respon- dent violated Section 8(a)(5) and (1) were held invalid by Administrative Law Judge Asher who set aside the election and remanded Case 7-RC-10583 to the Re- gional Director for the holding of a second election. Thereafter, Petitioner filed exceptions to the Decision of the Administrative Law Judge and Respondent filed a brief in answer to Petitioner's exceptions and contingent cross-exceptions. The Board has considered the record and the Ad- ministrative Law Judge's Decision in light of the ex- ceptions and brief, and has decided to affirm the Administrative Law Judge's rulings, findings,' con- clusions, and recommendations and to adopt his rec- ommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. IiT IS FURTHER ORDERED that the election conducted on July 8, 1971, in Case 7-RC-10583 be set aside and this proceeding be, and it hereby is, remanded to the bargain with the Union, but denied that the Union is the appropriate repre- sentative because of "objectionable conduct engaged in by the Union and its agents " The General Counsel filed a Motion for Summary Judgment In its Opposition to the Motion , Respondent contended that substantial and material issues of fact were raised by the objections and that therefore Re- spondent was entitled to a hearing On February 1, 1972, the Board issued its Decision and Order granting the General Counsel's Motion for Summary Judgment and finding that Respondent had violated the Act. 7 As noted above, the consolidation of the representation and unfair labor practice case has been withdrawn. 9 In the absence of specific exceptions, we adopt pro forma the Administra- tive Law Judge's finding that Respondent's Objection I is without merit. 212 NLRB No. 80 MEDICAL ANCILLARY SERVICES, INC. -583 Regional Director for Region 7 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bar- gaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] MEMBER PENELLO, dissenting: I disagree, on the facts and on principle, with my colleagues' adoption of the Administrative Law Judge's Decision finding interference with the elec- tion by virtue of "misrepresentations" by the Union's chief stewardess, Mary Ann Tavtigian.9 I cannot let this Decision issue without expressing my views not only on this miscarriage of justice but on the Board's entire policy concerning "misrepresentations" under its Hollywood Ceramics approach.1° For, whether one adheres to the Hollywood Ceramics decision or not, the activity in issue is not such as to warrant setting the election aside under any historical, existing, or proposed rules. First, the holding is erroneous under Hollywood Ce- ramics because the statements were close to the truth; not shown to have involved important issues in the campaign or in the minds of the voters; extremely minor in nature in any event; and not matters of which Tavtigian, a rank-and-file employee, would have or be thought to have special knowledge merely because she had been elected to her office of chief stewardess. Briefly, Tavtigian is found to have told one employee on the morning of the election that (1) Respondent's vice president had told an employee who was out sick that she should come in to vote and if necessary the vice president would arrange for her transportation and "if she did not come to vote she [the vice president] would see to it that [the ill employ- ee] was replaced quietly" (in fact the employee in- quired about voting and was offered and accepted transportation, but no such threat had been made); (2) the same ill employee had not received any disabil- ity check from the insurance company and this was because the Respondent "screwed up the claim delib- erately" (the delay was the result of the employee's carelessness and the carrier's delay but the record contains no indication it resulted in any part from Respondent's conduct); (3) another employee was off from work 1 day and "she was not paid for it .. . absolutely no reason was given" (this was true, but the 9 The majority adopt without comment the Administrative Law Judge's finding that Tavtigian was an agent of the Union because of her position as chief stewardess I am willing , for purposes of this discussion, to assume that this is so, as I find it irrelevant in my view of this case. However, I question whether the statements involved herein necessarily fall within her apparent authority so as to bind the Union without some evidence of actual authoriza- tion or subsequent ratification. 10 Hollywood Ceramics Company, Inc, 140 NLRB 221 (1962). employee had requested the day off and did not ex- pect to be and was not paid for it); and (4) nine employees in the evaluation department (of whom Tavtigian was one) "put in 157 hours overtime and only about four of us came out on top. The rest of them were only paid straight time for the overtime instead of time and a half" (this was true and some of the evaluators caused some confusion when they re-' ceived their checks that day because they thought there was an error, but ultimately it was decided they were not entitled to overtime pay and their checks were accurate). It is thus apparent that statements 3 and 4 were true. The employee was off 1 day without being paid and no reason was given (the fact that none was need- ed seems to me to be a matter of semantics), and the evaluators were in fact paid straight time rather than overtime and were questioning the propriety of this." Since both of the statements were true, it is immaterial that Tavtigian repeated both of them to employees Hughson and Pawlowski and told employee Weile- man about not receiving overtime. Furthermore, I am not aware of any showing that any of the statements were made after it was determined that the computa- tions were accurate, although that is irrelevant, espe- cially as some of the evaluators continued to express dissatisfaction with the Company's overtime rule. This then leaves items 1 and 2, both of which, were accurate except for the final statement of each; i.e., that the ill employee had been told that the vice presi- dent would see to it that she was terminated quietly if she did not vote and that Respondent was responsi- ble for the delay in her receiving sick benefits under the policy. They were, of course, untrue. But by what process or by virtue of what status was Tavitigian in a position which lent credence to her statements or which would lead an employee to believe she had particular knowledge concerning these matters? 12 And why, absent some evidence of which I am un- aware, were these two statements (even if repeated to others by the employee to whom they were made by Tavtigian) of such significance and relevance that the entire election process was tainted? I realize that this case is now before the Board after remand by the court of appeals. However, I do not understand the court to have held that if the alleged 11 With respect to this latter comment, the Umon notes, with some merit it seems to me, that Tavtigian was one of the evaluators and was reporting an existing problem with which she was concerned as an employee. i2 Members Fanning and Jenkins, in a very recent Decision, stated, "To constitute a `misrepresentation ,' a statement must refer to a matter concern- ing which the person making the statement has, or can reasonably be per- ceived to have, knowledge." Cumberland Wood and Chair Corp., 211 NLRB No. 55, fn. 1 (1974). Member Kennedy, in his dissent in that case stated: "The test to be applied is not 'whether the speaker in fact had special knowledge, but whether listeners would believe that he had.' " Ibid. It cannot be said here that Tavtigian or her statements fall within either of these definitions. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements were in fact made 13 they would require that the election be set aside. Rather, the court held that since the employer had offered evidence support- ing its contention that the statements had been made, in contradiction to the Regional Director's findings, the Company was entitled to a hearing to resolve the substantialand material issues of fact as to whether the incidents had occurred. Although not spelled out by the court, it is implicit in its opinion that the Board was then to weigh the conduct found and make its own findings as to whether the election should be set aside. The Administrative Law Judge's Decision which my colleagues adopt finds that the Employer's assertions of fact were true, and holds, in effect, that merely because some falsity existed the conduct inter- fered with the election. But he gives no reasons and supplies no rationale. In my view it is incumbent upon the Board to determine now whether the events inter- fered with the election and to state the reasons for its conclusions. It seems to me that this case illustrates graphically the restrictive interpretation that has been put on Hol- lywood Ceramics and its progenitor, The Gummed Products Company, 112 NLRB 1091 (1955), and the need for a complete reevaluation of the Board's ap- proach to misleading campaign propaganda. Such a study can lead only to the conclusion that both of these cases should be reversed and the Board should revert to its policy of setting elections aside only upon a showing of intentional deception rising to the level of fraud. For, the Board's current policy of reviewing the truth or falsity of the parties' statements has con- 13 In the representation case, the Board had adopted the Regional Director's report which found that the statements had not been made as alleed. 1 See also the report of the Subcommittee on Separation of Powers of the Senate Judiciary Committee, excerpts of which appear in the Congressional Record of April 23,1974, pp. S6067-6073. At S6068 is the following criticism of the Board's approach to this aspect: But speech need not be found "coercive" only to support an unfair labor practice charge, for the Board decided soon after passage of the Taft-Hartley Act that section 8(c) did not prevent the Board from invali- dating an election because noncoercive speech had disturbed the "labo- ratory conditions." That reading of the statute, unsupported as it is by statutory language and surely in conflict with the spirit of section 8(c), is itself hardly mandatory. Needless to say, the concept of "laboratory conditions" for elections has no counterpart in American political prac- tice. Indeed, the idea that speech of any kind much less `protected speech," can invalidate an election is unacceptable outside of labor law, and is dubious within it [Emphasis supplied.] i5 E.g., M. T Stevens & Sons Company, 68 NLRB 229 (1946). 1677 NLRB 124, 126-127 (1948): An election can serve its true purpose only if the surrounding conditions enable employees to register a free and untrammeled choice for or against a bargaining representative.... When a record reveals conduct so glaring that it is almost certain to have impaired employees' freedom of choice, we have set an election aside and directed a new one. Because tinued despite its repeated assertions that it would not make such review and has resulted in extensive analy- sis of campaign propaganda, restriction of free speech,14 increasing litigation, and unwarranted de- lays in the finality of election results. Initially, under the Wagner Act, the Board applied a strict rule against employers' making preelection antiunion speeches, whether or not they contained objectionable comments, while refusing to consider any union statements unless the employees voted un- der actual coercion. But thereafter the Board adopted a more lenient attitude toward employer comments.15 And following passage of the Taft-Hartley Act in 1974, the Board, in General Shoe Corporation, adopted its "laboratory conditions" rationale which has been followed since that time.16 However, the application of this standard has gradually become more and more restrictive, until now the Board (and consequently the court) scrutinizes and analyzes any preelection cam- paign material which anyone claims included miss- tatements of fact. The ability of employees to recognize and evaluate such statements as mere cam- paign propaganda has gradually been treated by the Board as virtually nonexistent, until we reach the ab- surd result in the instant case. This approach has been utilized notwithstanding the fact that on at least two occasions the Board has attempted to expound its rationale in such a way as to lead to less restrictive interpretations and applica- tions. Thus, in Hollywood Ceramics the Board set forth the underlying considerations 11 and restated the rule we cannot police the details surrounding every election, and because we believe that in the absence of excessive acts employees can be taken to have expressed their true convictions in the secrecy of the polling booth, the Board has exercised this power spanngly The question is one of degree. In election proceedings, it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees. It is our duty to establish those conditions, it is also our duty to de- termine whether they have been fulfilled. When , in the rare extreme case, the standard drops too low . . the requisite laboratory conditions are not present and the experiment must be conducted over again. 17 The Board said at p 223. The rule of [Gummed Products] is not a fixed one; it is merely one test used by the Board in determining whether the integrity of an election has been . impaired . . The basic policy underlying this rule, as well as the other rules in this election field, is to assure the employees full and complete freedom of choice in selecting a bargaining representa- tive. The Board seeks to maintain, as closely as possible, laboratory conditions for the exercise of this basic right of the employees. One of the factors which may so disturb these conditions as to interfere with the expression of this free choice is gross misrepresentation about some material issue in the election. MEDICAL ANCILLARY SERVICES, INC. 585 in an attempt to secure more reasonable application thereof. And more recently in Modine Manufacturing Company, 203 NLRB 527 (1973), the Board majori- ty 18 discussed all the problems and "inherent dan- gers" arising out of Hollywood Ceramics and recognized that those "inherent dangers make it in some degree tempting" to abandon the approach of that case but nevertheless indicated it was not pre- pared to do so. For the majority apparently considers that it has a duty to' protect voters from misrepresen- tations notwithstanding "improvements in our educa- tional processes, and ,despite the fact that our elections have become almost commonplace in the industrial world so that the degree of employee so- phistication in these matters has doubtless risen sub- stantially." The majority also suggested in Modine that "there must be a reasonably flexible and not too constrained or rigidly controlled area left for adminis- trative expertise in determining, in the best judgment we can muster from our knowledge and experience in the field, and in the exercise of sound administrative discretion, what circumstances justify either invali- dating an election or holding a hearing. . . ." Despite this the Board's rulings in this respect have been con- sistently more inflexible-and restrictive.19 It seems superfluous to repeat here all the rationale of Modine which is to me persuasive (or, to my col- leagues, make it "in some degree tempting") to aban- don the Hollywood Ceramics rule. Suffice it to say that I subscribe fully to all the reasons discussed in Mod- ine. Further than that, however, I see no reasons why the majority in Modine concluded that Board elec- tions require "safeguards' more rigorous than those applied in the arena of democratic procedures which lie at the very heart of our form of government." Can it be that my colleagues deem the selection of a bar- gaining representative as more consequential than the exercise of a political franchise in a presidential elec- tion, for example? 20 1 submit that under the guise of maintaining laboratory conditions we are treating em- ployees not like mature individuals capable of facing We are also aware that absolute precision of statement and complete honesty are not always attainable in an election campaign , nor are they expected by the employees." 18 Member Kennedy did not adopt the discussion with respect to Holly- wood Ceramics and I stated (fn 6) that I would not continue to adhere to Hollywood Ceramics. t9 See, e.g., Natter Manufacturing Corporation, 210 NLRB No. 27 (1974); GTE Lenkurt, Incorporated, 209 NLRB No. 91 (1974) (re wage comparison), Dubte-Clark Co., Incorporated, 209 NLRB No. 21 (1974); Western Health Facilities, Inc., 208 NLRB No. 20 (1974). 20 See the discussion of the analogy between political and Board elections by Professor Derek C Bok, The Regulation of Campaign Tactics in Represen- tation Elections Under the National Labor Relations Act, 78 Harv L.R. 38, 69-81(1964). Professor Bok was formerly dean of the Harvard Law School and is presently president of Harvard University the realities of industrial life and making their own choices but as retarded children who need to be pro- tected at all costs. The Board's policies in this respect have been crit- icized rather severely in scholarly studies of this sub- ject. Thus, Professor Bok 21 found little justification for restrictions on misleading statements short of highly material and substantially inaccurate represen- tations. And the very recent study by Robert E. Wil- liams, Peter A. Janus, and Kenneth C. Huhn 22 went so far as to suggest (at 61): ... that a better approach would be for the Board to overrule Hollywood Ceramics, repudiate its "laboratory conditions" notion, and an- nounce a new policy according campaign state- ments by all parties, treatment which is similar to that given to union campaign statements prior to the Taft-Hartley amendments. That is, the Board should declare that it will not review the truth or falsity of the parties' statements, and that it is up to the voters to protect themselves against dis- torted, misleading, or inflamatory propaganda. Agency intervention should be explicitly limited to instances of . . . intentional deceptions rising to the level of actual fraud. These treatises contain persuasive commentary which augments the rationale of Modine. They are too lengthy to quote in full and too well stated to summar- ize effectively. Professor Bok, inter alia, noted that the policy of discouraging misleading statements could probably be defended more easily on grounds of fair- ness than on the expectation of promoting greater rationality on the part of the voters. stated (at 84-85) that "Indeed, the Board seems implicitly to have pro- ceeded on this basis [of fairness]-rather than on grounds of protecting the voters-for the prevailing rules excuse false statements if the other party had a reasonable opportunity to reply, -regardless of whether the employees were actually given the benefit of re- buttal" and also stated "If a standard of truth' and accuracy could actually provide an administrable norm, something might be said for adopting such a view. But this possibility tends to dissolve on more careful analysis...., qualifications [recognized by judges and administrators] . . . immediately began to blur the line between the licit and illicit"; and con- cluded (at 92) "these restrictions threaten established rights of the parties and depart from the normal prin- ciples governing political elections in return for a 21 Id at 82-89/ 22 NLRB Regulation of Election Conduct, Report No. 8 of the Labor Rela- tions and Public Policy Series (1974), published by the Industrial Research Unit of the Wharton School, University of Pennsylvania. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD highly speculative contribution to the objectives which the law seeks to promote. Moreover, such re- strictions resist every effort at clear formulation and tend inexorably to give rise to vague and inconsistent rulings which baffle the parties and provoke litiga- tion." 23 Along the same lines, the Williams, Janus, and Huhn study summarized the following problems in- herent in the Board's attempt to apply flexible stan- dards:24 Determinations regarding the substantiality and materiality of particular misrepresentations are necessarily highly subjective . It would be diffi- cult for any tribunnal [sic] . . . to reach uniform and consistent results in the application of such standards. The timing test represents a logical and necessary attempt to limit agency involvement to cases of "last-minute" abuses, but even it may raise vexatious issues offact regarding what is required for an "effective" opportunity for reply. With re- spect to the source and independent knowledge fac- tors, the Board's decisions reflect a fundamental ambivalence as to how much emphasis should be placed upon the voters' own abilities to recognize campaign propaganda for what it is and either disregard it or take independent steps to verify it before voting in reliance thereon. In some cases, the Board appears to have regarded the employ- ees as exceptionally naive and in need of exten- sive protection from the agency. In others, the Board has seemed willing to impose a high degree of responsibility on the voters themselves to pro- tect themselves from being misled by campaign claims. These authors note (at 58) that because of statutory and procedural requirements the courts review only cases in which the Board has ,rejected employer claims of interference by union misrepresentations and has certified the union, and the employer thereafter has refused to recognize and bargain with the certified labor organization . They observe that "judicial dis- agreement with the Board 's treatment of election mis- representations has almost always resulted in the court's ordering the Board to apply a more rigorous, 23 The effects of misleading statements upon a rational decision by the voters are doubtful, at best. See Professor Bok's discussion , at 48-53, in which he concludes that voters are not likely to be any more rational in making a decision in a representation election than in a political ; and at 52 that "if it is correct to assume that the issues in representation elections have become increasingly complex, one must be skeptical about the degree to which legal rules can actually bring about more reasoned decisions by the electorate." See especially his references at 48 to studies concerning choices made in political elections. 24 At 57. rather than a more lenient, standard," possibly as a result of the courts' suspicion that the Board has ruled unfairly against employers in cases involving election propaganda and that "courts seeking to correct what they may view as agency favoritism toward unions have little choice but to insist that the Board stick closer to its `laboratory conditions' ideal when consid- ering alleged union propaganda abuses." 25 They con- tinue with a discussion of practical and policy reasons why it would be desirable to reduce the Board's role in policing such propaganda and the difficulties in accomplishing this,26 but conclude:27 Even if the Board is able to accomplish a shift in policy in the manner contemplated by Modine without resistance from the courts, there is still likely to be a continued high volume of litigation over charges of campaign misrepresentations. For the Board will still be applying-albeit more sparingly-a policy whereby the validity of elec- tions will turn upon a series of vague tests, each of which involves a number of highly subjective considerations varying with the facts of each case. As long as the Board continues to probe into the truth of falsity of campaign statements and measure their effect on election results by these uncertain standards, parties unsuccessful in the balloting will object routinely to their oppo- nents' campaign statements, and the Board will be forced to engage in a painstaking analysis of everything that was said in the campaign, with the certification of the election results delayed in the interim. In sum, the Gummed Products rule, as "clarified" by Hollywood Ceramics, has served only to impose in- creasingly greater restrictions on activities of parties in conjunction with Board elections and heavier case- loads on the Board and has led to substantial delays in the final disposition of representation cases. I see no good reason why the Board should continue to intervene "to protect voters from their own gullibili- ty," 28 and would limit Board intervention to cases involving situations like that in United Aircraft Corpo- ration, Pratt & Whitney Aircraft Division, 103 NLRB 102 (1953),29 which involved intentional trickery which the voters could have no reason to suspect and no reason to check for authenticity. Accordingly, I would overrule Gummed Products and Hollywood Ce- 2t At 58. 26 At 59-60. 27 At 60. 28 Williams, Janus, and Huhn at 50. 29 See also Sylvania Electric Products, Inc, 119 NLRB 824, 828 (1957). MEDICAL ANCILLARY SERVICES, INC. 587 ramics, and in the present case I would reverse the Administrative Law Judge's Decision and reaffirm both the results in the underlying representation case and the finding in the instant unfair labor practice case. But, as noted above, even under the Hollywood Ceramics rule I would reach the same result herein. DECISION SYDNEY S. ASHER, Administrative Law Judge: On May 24, 1971, Office and Professional Employees International Union, AFL-CIO, Local 10 (herein called-the Union), filed a petition in Case 7-RC-10583, seeking to represent certain employees of Medical Ancillary Services, Inc., Troy, Michi- gan (herein called the Respondent), for purposes of collec- tive bargaining. Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and ap- proved by the Regional Director for Region 7 of the Nation- al Labor Relations Board on June 17, 1971, an election by secret ballot was conducted on July 8, 1971, among the employees of the Respondent in an appropriate collective- bargaining unit. Fifty-one votes were cast for the Union and 49 votes were cast against the Union; there were no chal- lenged ballots. Thereafter the Respondent filed timely ob- jections to conduct affecting the results of election, to which were attached several affidavits, and which read as follows: 1. That on July 8, 1971, immediately prior to the elec- tion, union supporter Larry Kuzak stated to various employees eligible to vote in the election that Yvonne Tilwick, a fellow employee who was off because of illness, was not going to receive the disability insurance which the employee handbook stated she was entitled to. 2. That on July,8, 1971, immediately prior to the elec- tion, union supporter Mary Tavtigian stated to various employees eligible to vote in the election that: (a), Yvonne Tilwick was not being paid the disability insurance she was entitled to because the company deliberately "screwed up" her claim so that she would not be paid. (b) That Elisabeth Rohrmaier telephoned this same Yvonne Tilwick and ordered her to vote or else be discharged. (c) That Norma Harvey, an employee in the desig- nated bargaining unit was not paid for a day off, July 6, 1971, and was_given no reason for not being paid. (d) That some of the girls in her department had worked over forty (40) hours in a week and had not received overtime pay for doing so. 3. That these statements were a substantial departure from the truth. 4. That the two individuals who made these statements had no factual bases on which to make such statements and therefore, made them with the deliberate intention of misleading voters. 5. That these material misrepresentations were inten- tionally made immediately prior to the election when the Employer was unable to effectively neutralize them. 6. That these misrepresentations materially affected the attitude of several voters, in that they caused them to doubt the integrity of the Company and, thus, influ- enced. their vote creating a significant impact on the outcome of the election. Thereafter the Regional Director investigaged the objec- tions and issued a Report and Recommendations on^Objec- tions recommending that the Respondent's objections be overruled in their entirety and that the Board issue a certifi- cation of representative certifying that the Unioii'had re- ceived a majority of the valid ballots cast in the election.' Thereafter the Respondent filed with the Board exceptions to Regional Director's Report and Recommendations on Objections. To this were attached additional affidavits. On October 12, 1971, the Board issued its Decision and Certifi- cation of Representative in Case 7-RC-10583 finding that the Respondent's exceptions "raise no substantial issue of fact or law which would warrant reversal of the Regional Director's findings and recommendations," adopting the Regional Director's findings and recommendations and cer- tifying the Union as the exclusive bargaining representative of the employees in the appropriate unit. On October 27, 1971, the Union filed charges against the Respondent in Case 7-CA-9062. Based thereon, the Gener- al Counsel of the National Labor Relations Board (herein called the General Counsel), issued a complaint on October 29, 1971, alleging that since on or about October 12, 1971, the Union has been the representative for the purpose of collective bargaining of all the Respondent's employees in an appropriate unit, and that since on or about October 27, 1971, the Respondent has refused to bargain collectively with the Union, although requested to do so. It is alleged that this conduct violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. The Respondent filed an answer admitting that the Union had demanded recognition and that the Respondent has refused to grant such recogni- tion, but denying that the Union had been elected as the representative of the employees in the appropriate unit, as- serting that the results of the election were invalid because of "objectionable conduct engaged in by the Union and its agents" and denying that the certification was properly is- sued. The General Counsel then filed' a motion to transfer case to and continue proceeding before the Board and for summary judgment. Thereafter the Board issued a notice to show cause why the General Counsel's motion for summary- judgment should not be granted, and the Respondent filed its opposition to the General Counsel's- motion for summary judgment. In this document, the Respondent takes the posi- tion that substantial and material issues of fact have been raised by the objections and that therefore the Respondent is entitled to a hearing. On February 1, 1972, the Board issued its Decision and Order finding that "the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding," granting the General i After the Regional Director issued his Report and Recommendations on Objections the Respondent filed with the Regional Director a motion for reconsideration on objections. Thereafter the Regional Director denied the Respondent's motion for reconsideration on objections. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel's motion for summary judgment, finding that the Respondent was refusing to bargain with the Union in vio- lation of Section 8(a)(1) and (5) of the Act, and ordering the Respondent, upon request, to bargain with the Union as the exclusive bargaining representative of the employees in the appropriate unit, and to post appropriate notices .2 Thereafter the Board applied to the United States Court of Appeals for the Sixth Circuit for enforcement of its Or- der. The court held that "the- Board erred in failing to find that the company [Respondent] was entitled to a hearing before the Board on its exceptions to the election, and con- sequently in finding the company [Respondent] guilty of violating the Act." Accordingly, the court vacated the Board's Decision and Order and the Order adopting the Regional Director's report, and remanded the case to the Board "with directions that the company [Respondent] be afforded a full adversary hearing upon its exceptions to the Regional Director's Report."' Thereafter the Board issued an order consolidating Case 7-CA-9062 with Case 7- RC-10583, remanding the proceeding to the Regional Di-, rector, and directing that a hearing be held before an Ad- ministrative Law Judge. It further ordered that, upon conclusion of such hearing, the Administrative Law Judge should prepare and serve on the parties a decision contain- ing findings of fact, conclusions of law, and recommenda- tions. Pursuant to notice ,a hearing was held before me at De- troit, Michigan, on September 20 and 25, 1973. All parties were represented and participated fully in the hearing. After the close of the hearing, the Respondent and the Union filed briefs which have been carefully considered. Upon the entire record, and from my observation of the witnesses, I make the following: noon that day-several hours before the election which took place from 2 :30 to 4 p.m.-she was approached at her place of work by Larry M. Kuzak, another employee eligi- ble to vote in the election. Kuzak spoke to McLaughlin in the presence of Denise Flake, a third employee eligible to vote in the election . McLaughlin's testimony on direct ex- amination as a witness for the Respondent was, in pertinent part, as follows: Q. What did Larry Kuzak state to you or say to you? A. Something about Yvonne [Tilwick]. She was the one that was out sick and something about she wasn't receiving her sick pay or something. I don's really re- member all that was said. [Emphasis supplied.] * * Q. (By Mr. Healy): What did-did Mr. Kuzak say anthing further? A. No. Q. Were you aware at the time of the conversation who Yvonne Tilwick was? A. Yes. Q. Who was Yvonne Tilwick? A. She use [sic] to be a supervisor, you know, where Larry worked in another department. Q. Was she a supervisor at this time , that is, the time of this conversation? * FINDINGS OF FACT A. Statement of the Issue In its decision of February 1, 1972, the Board found that the Respondent is, and at All material times has been, an employer engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction over its operations. The Board further found that the Union was a labor organization within the meaning of the Act, that the agreed-upon unit was appropri- ate, that the Union had demanded recognition as the exclu- sive bargaining agent for the employees in this unit, and that the Respondent had refused such recognition. As I read the court's decision, these findings remain, un- impaired. Under the court remand, the only remaining issue herein is the merits of the Respondent's objections. B. Objection 1 1. Kuzak's remarks to McLaughlin and Flake Janice McLaughlin 4 was, on the day of the election, an employee of the Respondent eligible to vote. At or about 2 195 NLRB 290 (1972). 3 N LR B. v. Medical Ancillary Services, Inc., 478 F.2d 96 (C.A. 6, 1973). THE WITNESS No, I don't think so. Q. (By Mr. Healy): Do you remember any further details of the conversation with Mr. Kuzak? A. No. On cross-examination by the Union's attorney, McLaughlin testified: Q. Do you recall exactly what he [Kuzak] said word for word or do you merely remember what the subject of the conversation was? A. I just remember the subject. I don't remember hardly anything of what he said, but, you know- Q. You do recall that the name Yvonne Tilwick came up and you do recall that there was discussion about disability benefits? A. Right. On cross-examination by the General Counsel, McLaugh- lin testified: Q. You testified you have a vague recollection as to 4 At the time here material her name was Janice McLaughlin, her maiden name Thereafter she married. When she later testified , her marred name was Janice Young. MEDICAL ANCILLARY SERVICES, INC. 589 the content of the conversation with Mr. Kuzak. Did his remarks surprise you in any way? * * * * THE WITNESS: Yes. Q. (By Mr. Meadows): Why is that? * * * * * THE WITNESS: Well it was stated in the handbook,' you know, that we were suppose [sic] to receive benefits and she didn't and that didn't seem like, you know, the company was being fair. Denise Flake,6 a witness for the Respondent, testified that she had no independent recollection of any conversation with Kuzak regarding the Respondent's treatment of Til- wick. Kuzak, a disgruntled former employee, recalled speaking with other employees on the day of the election about Tilwick and disability pay but could not remember the identity of those with whom he spoke and had no inde- pendent recollection of what was said. McLaughlin's ver- sion of this conversation therefore stands undenied and is credited. On the basis of McLaughlin's testimony it is found that, a few hours before the election, Kuzak told McLaugh- lin and Flake that Tilwick, who was out sick, was not receiv- ing her sick pay. This statement was made so close to the time of the election that the Respondent had no adequate opportunity to reply. 2. Conclusions respecting Kuzak's status With regard to this objection, the Respondent in its brief states: "The Company [Respondent] does not contend that Larry Kuzak was a union agent, however the testimony establishes that he voted for the Union in the representation election 7 and was, therefore, a union supporter." This argu- ment ignores the fact that the statement in question was made by Kuzak several hours before the election; there is no evidence that at that time he had already made up his mind to support the Union. In any event, the mere fact that Kuzak supported the Union does not, standing alone, con- stitute him an agent of the Union. I conclude that, on the record before me, Kuzak's preelection remarks are not at- tributable to the Union and therefore furnish no grounds for upsetting the election. Objection 1 is therefore without ment. In this posture of the case, I need not, and do not, determine whether Kuzak's remarks constituted a material Upon hire, each employee is supplied by the Respondent with a copy of "M.A.S. Employees Handbook." The Respondent's sick leave policy is set forth in detail in this publication. 6 At the time here material her name was Denise Flake, her maiden name Thereafter she married. When she testified, her married name was Denise Krawzcak. r When Kuzak voted, his ballot was originally challenged by the Respon- dent. A count of the other ballots showed 50 votes for the Union and 49 against; Kuzak's ballot (the only challenged ballot) was determinative. At that point the Respondent withdrew its challenge , Kuzak's ballot was opened and counted and a tally of ballots prepared showing 51 votes for the Union and 49 against. departure from the truth. C. Objection 2 1. Tavtigian's status At a union membership meeting held sometime before the Board-conducted representation election, Mary Ann (Taffy) Tavtigian, then an employee of the Respondent, was elected chief stewardess of the Union. She served in this capacity throughout the campaign, at least up to and includ- ing the election. She distributed union application cards and answered questions from employees about the Union. I find that, at all material times, she was an agent of the Union, that statements made by her described hereafter fell within the scope of her authority, and that the Union is accordingly accountable for such statements. 2. Tavtigian's remarks to Rodzinka On the morning of the Board-conducted election, before the election itself, Mary K. Rodzinka, then an employee of the Respondent eligible to vote in the election, had a talk with Tavtigian at Tavtigian's desk in the evaluation depart- ment. During this conversation Tavtigian told Rodzinka, among other things (1) Elisabeth Rohrmaier, vice president of the Respondent, had on the previous evening told Tilwick that Tilwick "was expected to come in on the day of the election and vote," adding that if Tilwick "was not able to drive she [Rohrmaier] would arrange for someone from the Company to pick her up at home and bring her in" and that if Tilwick "did not come in to vote she [Rohrmaier] would see to it that Yvonne [Tilwick] was replaced quietly"; (2) that Tilwick "has not received one disability check from the insurance company since she has been off work and it is because MAS [the Respondent] screwed up the claim delib- erately"; (3) that Norma Harvey, then a salaried employee, "was off Tuesday and she was not paid for it :.. absolutely no reason was given"; and (4) that "nine of us here [in the evaluation department] put in 157 hours overtime and only about four of us came out on top. The rest of them were only paid straight time for the overtime instead of time and a half." 8 Rodzmka testified that she (Rodzinka) repeated to 8 On direct examination Rodzinka testified orally regarding the contents of this conversation. On cross-examination she admitted that she had no independent recollection of the contents of the conversation, but had re- corded the event in writing almost contemporaneously. The writing was then offered and received in evidence as past recollection recorded . In making findings as to the contents of the conversation I do not rely on Rodzinka's verbal testimony, but rather on her virtually contemporaneous recording. Tavtigian testified that she told Rodzinka (1) that Rick (Tilwick, another employee) was going to bring Yvonne (Tilwick) in to vote "and, if she was going to vote, she couldn't be fired"; that (2) Tilwick "hadn't received a check or any pay for being off sick . . . because something had gotten messed up in the transaction with her insurance policy and that Mr. Maraveleas, the president of the corporation [Respondent], was making up the difference between her paycheck and what the insurance would pay", (3) that Norma Harvey "didn't receive pay for a day . . and that she [Norma] was a little upset about it'; and (4) that "some of the evaluators were upset because they felt they didn't receive their proper pay for the overtime that they had put in." Tavtigian did not impress me as entirely sincere or candid. To the extent that her testimony differs from Rodzinka's record, I credit Rodzinka's record as the more accurate and reliable 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees what Tavtigian had told her .9 Let us examine the actual facts, as they are reflected in the record, regarding the four statements made by Tavtigian to Rodzinka, described above As to (1), Rohrmaier testified that before the election Tilwick, who was out sick, tele- phoned to Rohrmaier and asked what she (Tilwick) should do about voting; Rohrmaier agreed that the Respondent would provide transportation for Tilwick from her home to the polls and return; and that, in accordance with that promise, the Respondent provided such transportation on election day to Tilwick who did, in fact, vote Rohrmater denied that there was any reference in this conversation to Tilwick's being required to vote. Rohrmaier impressed me as a forthright and reliable witness; I credit her undenied version of this telephone conversation. Regarding (2), Tilwick had become ill late in May or early June 1971. Her application for sick pay, addressed to the insurance carrier, had not borne fruit prior to the election This was due, however, in part to Ttlwick's own carelessness and in part to the carrier's inefficiency or apathy; there is no indication that the delay was caused in any substantial part by the Respondent's conduct. The Respondent volun- tarily offered to pay the difference (one-third) between Tilwick's full pay and the amount she was due to receive from the insurance carrier (two-thirds). Indeed, two checks from the Respondent had been sent to Tilwick before the election. With respect to (3), Norma Harvey had requested and received from Rohrmater permission to be absent for a workday during the week before the election, to attend to a personal matter. Harvey told Rohrmaier: "I do not expect to get paid for that day." Harvey was not paid for that day. As to (4), the paychecks which some of the evaluators received on the morning of the election (which was payday) caused confusion among them regarding whether or not they were entitled to overtime. Rohrmaier learned of this, checked the computations, and found the paychecks all to have been properly calculated. Rohrmaier then directed Fran Maier, their supervisor, to explain to the evaluators how the calculations had been made This Maier did before the polls opened. Thus, before the election, the evaluators learned of the correctness of the paychecks, but other em- ployees were not shown to have acquired this knowledge until later. 3. Tavtigian's statements to Hughson and Pawlowski Shortly before lunchtime on July 8, 1971, before the elec- tion, Tavtigian had a conversation in the claims department with Patricia Hughson and Linda Pawlowski,10 both em- 9' Rodzmka did not specifically testify that she repeated these matters before the election However Dawn Metcalf, an employee of the Respondent eligible to vote in the election. testified that at lunch that day in the cafeteria Penny Tremmel, another eligible employee, stated to a number of employees that Tilwick "wasn' t going to get any disability insurance money" The Respondent does not contend that Tremmel , in making this statement, was acting as an agent of the Union. Nevertheless Metcalf's testimony, consid- ered in conjunction with Rodzinka 's testimony that she repeated to other employees what Tavtigian had told her, leads to an inference , and on the entire record before use I find, that Rodzinka's repetition of Tavtigian's statements occurred before the election 10 At the time Linda Pawlowski was her maiden name Since then she married She testified under her married name , Linda Vassas. Hughson de- ployees eligible to vote in the election. During this conversa- tion Tavtigian stated "that the evaluators weren't getting paid for their overtime" and that Tilwick "wouldn't be get- ting paid for the time that she was off work." II Later, at lunch in the cafeteria, before the election, Pawlowski repeat- ed to other employees, including McLaughlin, that "the evaluators weren't getting paid for their overtime." 12 4. Tavtigian's remarks to Weilemann Glen Weilemann, then an employee of the Respondent eligible to vote in the election, had a conversation with Tavtigtan at lunchtime on the day of the election in the hallway, in the presence of a third unidentified employee. In this conversation Tavttgtan stated that employees of the evaluation department "had worked overtime ... and they hadn't been paid . . . for the number of hours they had worked." She added that "this was one of the reasons we should get a union into the Company, so that something like this wouldn't happen." 13 5. Conclusions On the entire record, I find that all four statements made by Tavtigian to Rodzinka on election day constituted mate- rial departures from the truth The same is also true of Tavtigian's two remarks to Hughson and Pawlowski, and her statement to Weilemann. I further find that all the above-described statements of Tavtigian were uttered so close to the time of the election that the Respondent lacked a reasonable opportunity to answer or explain Tavtigtan's accusations. Finally, I find that these comments by Tavtigi- an were likely to have a substantial impact on the election, especially in the light of their repetition to other eligible employees before the election, and the close result of the balloting. Accordingly, I conclude that the Respondent's Objection 2 is meritorious.14 Upon the basis of the above findings of fact, and upon the entire record, I make the following. AMENDED CONCLUSIONS OF LAW Delete Conclusions of Law 4, 5, 6, and 7 contained in the scribed one of the participants as Mary Ann Cobb, but it is clear from the record as whole that this was the same person as Mary Ann Tavtigian, whose nickname was Taffy 11 This finding is based on Hughson's credited testimony Although Paw- lowski testified, she could not recall this conversation Tavtigian did not specifically recall any conversation with Hughson or Pawlowski However, she denied that on the day of the election she had discussed Tilwick's failure to receive disability benefits with anyone other than Rodzinka Her denial in this respect is not credited 2 This finding is based entirely on Hughson 's undenied testimony Mc- Laughlin testified only that she had lunch in the cafeteria that day Although Pawloski testified, she did not mention this incident 13 This finding is based on Weilemann's testimony, which stood up well under vigorous cross-examination Tavtigian testified that she (Tavtigian) told Weilemann that "according to their feelings they [the evaluators] did not receive their full pay or time and a half for the [overtime ] hours that they had put in which was quite a few hours " To the extent that Tavtigian's version differs from that of Weilemann , Weilemann's is credited as the more accu- rate 14I deem it unnecessary to discuss the Respondent 's other objections which appear to be merely conclusionary MEDICAL ANCILLARY SERVICES, INC. 591 Board's Decision of February 1, 1972, and substitute there- for the following: "4. Mary Ann Tavtigian was, at all material times, an agent of the Union within the meaning of Section 2(13) of the Act; Larry M. Kusak was not. "5. On July 8, 1971, prior to the election, Mary Ann Tavtigian made statements to employees eligible to vote in the election which constituted material departures from the truth, were uttered so close to the time of the election as to deprive the Respondent of an adequate opportunity to re- spond, and were likely to'have a substantial impact on the results of the election. "6. The Respondent's Objection 1 is without merit; the Respondent's Objection 2 is meritorious; it is unnecessary to rule on the remaining objections. "7. The election held on July 8, 1971, the certification of the Union based thereon, and the finding of the Board that the Respondent violated Section 8(a)(1) and (5) of the Act are invalid." Upon the foregoing findings of fact, amended conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 15 1. The election in Case 7-RC-10583, held on July 8, 1971, is set aside. 2. Case 7-RC-10583 is severed from Case 7-CA-9062 and remanded to the Regional Director for the holding of a new election. 3. The complaint in Case 7-CA-906215 is dismissed in its entirety. 15 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections shall be deemed waived for all purposes.