Century City Hospital

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Century City Hospital and Hospital and Service Em- ployees Union, Local 399, Service Employees Inter- national Union, AFL-CIO, Petitioner. Case 31- RC-3013 July 10, 1975 DECISION AND DIRECTION BY MEMBERS JENKINS , KENNEDY, AND PENELLO Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended, a three- member panel has considered objections and deter- minative challenges in an election held on January 17, 1975,' and the Regional Director's report 2 rec- ommending disposition of same. The Board has re- viewed the record in light of the exceptions and briefs, and hereby adopts the Regional Director's findings3 and recommendations. DIRECTION It is hereby directed that, as part of his investiga- tion to ascertain the representative for the purposes of collective bargaining with the Employer, the Re- gional Director for Region 31 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Decision and Direction open and count the ballots cast by Marlene Bitters, Glen Etow, Calvin Saito, Genevieve Henderson, Felipe Wong, Paul Boehm, Gwen Yount, Judi Chance, Robin Gabe, John Saenger, and Robert Solomon and there- after cause to be served on the parties a revised tally of ballots, including therein the count of those 11 ballots. If those 11 ballots are determinative of the results of the election, regardless of the ballots cast by William Brown and Steven Newman, the Region- al Director shall, pursuant to the Board's Rules and Regulations, issue the appropriate certification. IT IS FURTHER DIRECTED that, if the ballots of Wil- liam Brown and Steven Newman are sufficient in number to affect the results of the election as shown by the revised tally of ballots, the Regional Director i The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was Ill for, and 103 against, the Peti- tioner, there were 14 challenged ballots. 2 The relevant portion of the Regional Director 's report is attached hereto as an Appendix. 3 In adopting the Regional Director's recommendations, we do not adopt his conclusion regarding the applicability of Milchem, Inc, 170 NLRB 362 (1968), to all conduct that could conceivably be engaged in by election observers. Under the appropriate circumstances such conduct could come within the prohibitions established in Mdchem, supra. See, e.g., General Dy- namics Corporation, 181 NLRB 874 (1970), Modern Hard Chrome Service Co., 187 NLHB 82 (1970). shall cause to be conducted a hearing for the purpos- es of resolving evidence pertaining to the issues raised by the challenges to the ballots cast by Brown and Newman. IT IS FURTHER DIRECTED that, if a hearing is neces- sary, the Hearing Officer designated for the purpose of conducting such hearing shall prepare and cause to be served on the parties a report containing resolu- tions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposi- tion of said challenges. Within 10 days from the date of issuance of such report, any party may file with the Board in Washington, D.C., eight copies of ex- ceptions thereto. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other parties and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the Hearing Officer. IT IS FURTHER DIRECTED that the proceeding herein be, and it hereby is, remanded to the Regional Direc- tor for Region 31 for further proceeding consistent herewith, including the arranging of such hearing if necessary, and that the Regional Director be, and he hereby is, authorized to issue notice thereof. MEMBER KENNEDY, dissenting: My colleagues here adopt the Regional Director's findings and recommendation, inter alia, that the Employer's objections to the election be overruled. One of those objections, Objection 3, alleges that two of Petitioner's election observers clearly breached the Board's Milchem rule.4 I do not agree with the major- ity. In my view, the Employer has presented suffi- cient evidence to require a remand to the Regional Director and a hearing on this objection. The Employer presented at least two witnesses to the Regional Director to support its objection. Ac- cording to one witness, during the afternoon session of the balloting Petitioner's observer Scott engaged voters in conversation as the voters entered the poll- ing area. Another witness stated that she saw Scott conversing with a voter as she entered the polling area during the morning session. Further, according to the Employer's observer, Petitioner's observer Vasquez asked her at least twice during the afternoon voting session how she was going to vote and why she was not voting for the Union. Both Scott and Vasquez deny making any of the remarks attributed to them beyond normal greetings to acquaintances. The Regional Director recommended that the ob- jection be overruled on the ground that the Milchem restriction on parties' remarks to employees who are in line to vote is not applicable to their election ob- 4 Milchem, Inc, 170 NLRB 362 (1968). 219 NLRB No. 6 CENTURY CITY HOSPITAL servers, and on the additional grounds that the sub- stance of Scott's and Vasquez' remarks were innocu- ous and could not have affected the outcome of the election . My colleagues properly reject the-first part of the Regional Director's rationale, because the law of Milchem clearly applies to observers , who are, of course, agents of the parties. Nevertheless, the majority overrules this objection on the second basis advanced by the Regional Direc- tor, i.e., that the substance of the Petitioner's observ- ers' remarks could not have affected the outcome of the election. Such an analysis was explicitly rejected by the Board in Milchem. There the Board held that: In our prior decisions dealing with the effect of conversations between parties to the election and employees preparing to vote, we have not enunciated a clear standard against which to measure such conduct . Careful consideration of the problem now convinces us that the potential for distraction , last minute electioneering or pressure, and unfair advantage from prolonged conversations between representatives of any party to the election and voters waiting to cast ballots is of sufficient concern to warrant a strict rule against such conduct , without inquiry into nature of the conversations. . . . [Emphasis sup- plied] [ 170 NLRB 362.] Accordingly, I would direct a hearing on the Employer's Objection 3 to resolve the conflict in tes- timony as to the frequency and length of the conver- sations between Petitioner's observers and employees who were waiting to vote . And if, after a hearing, it were found that prolonged conversations did in fact occur, I would set aside the election , without inquir- ing into the nature of those conversations. APPENDIX 3. Ray Scott and Alex Vasquez, two of Petitioner's observers, engaged in electionering [sic] at or near the polling areas. The election was conducted on the Employer's premises in the doctors ' lounge, located on the sec- ond floor of the hospital in the administrative-office area of the hospital . The election was conducted from 6:30 a.m. to 8 a.m. and from 2 : 30 p.m. to 4 p.m. Scott was present at both voting sessions and, togeth- er with an Employer observer, served as a line watch- er. One of the Employer's witnesses, an observer, states that during the afternoon session he was stand- ing next to Scott outside the entrance to the voting 53 area. According to the witness, as employees came down the hall to enter the lounge to vote, Scott spoke to some in Spanish . The witness states that he does not speak or understand Spanish , therefore, he does not know what Scott said . He also states that Scott asked one employee in English about another em- ployee who needed a ride to the polls, and that Scott said that another employee might be able to bring her in . Scott then continued the conversation in Spanish. This witness also states that he heard Scott ask another employee, "How did you vote?" and the employee replied , "None of your business." The wit- ness admits that Scott, when speaking English, said no more than "Hello," or told employees that the lounge was the voting place , except for the above- recited remarks. Another Employer witness states that she ap- proached the voting area about 7:15 a.m . As she ap- proached, she heard Scott say, "Anything for more money, I'm for more money ," apparently not direct- ing his remark to any particular employee , though at least one other employee may have been close enough to Scott to have heard the remark. Scott denies making any of the remarks attributed to him or questioning any employee about how he or she voted. He admits saying, "Hello," and "Como esta?" ("How are you?") in Spanish, and "Thank you" in both English and Spanish to voters as they left. Scott states under oath that his Spanish is limit- ed to a few phrases such as greetings . The Employer did not offer any witnesses who could state what Scott said in Spanish. Alex Vasquez served as the Petitioner's observer at the table where voters' names were checked off. The Employer's observer at the afternoon session states that Vasquez whispered to her, "How are you going to vote?" She says later he asked her , "How come you're not voting for the Union?" Vasquez under oath denies making any remarks attributed to him, saying he had been instructed not to make such re- marks. None of the foregoing incidents was brought to the attention of either of the two Board Agents then con- ducting the election. The Board's Milchem 5 restriction on parties' re- marks to employees who are in line to vote is not applicable to observers . General Dynamics Corp., 181 NLRB 874. Of the incidents involving Scott, I find that only one, his remark, "Anything for more mon- ey; I'm for more money," causes me concern. The remainder are either innocuous or directed at an em- ployee after the employee cast the ballot. Assuming, arguendo, that Scott's remarks were electioneering, I ' 170 NLRB 362. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that they were isolated , and were not made in the context of continuing electioneering following a Board Agent's admonition against such conduct. Cf. Modern Hard Chrome Service Co., 187 NLRB 82. The remarks attributed to Vasquez were made to but one employee, another observer . No evidence was of- fered that any other employee overheard his remarks. For the reasons given regarding Scott, I find that Vesquez' remarks, if made, were also isolated and could not affect the outcome of the election. There- fore, I conclude that the remarks attributed to Scott and Vasquez, if made, were insufficient grounds to set the election aside, and I will recommend that Employer's Objection 3 be overruled.