Kentfield Medical Hospital

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kentfield Medical Hospital and Freight Checkers, Clerical Employees & Helpers Union, Local No. 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Petitioner. Case 20-RC-12054 July 17, 1975 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties, and ap- proved by the Regional Director for Region 20 of the National Labor Relations Board on July 25, 1974, an election by secret ballot was conducted in the above- entitled proceeding on August 16, 1974, under the direction and supervision of the Regional Director. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that there were approximately 82 eligible voters and that 54 ballots were cast, of which 25 were for Petitioner, none for the Intervenor,' and 28 against the partici- pating labor organizations. There was one unre- solved challenged ballot insufficient to affect the out- come. On August 21, 1974, Petitioner filed timely objec- tions to the election. The Regional Director investi- gated the issues raised by Petitioner's five objections and, thereafter, on October 23, 1974, issued and served on the parties his Report on Objections in which he recommended that the Board overrule the objections in their entirety. After receiving an exten- sion of time in which to file exceptions, the Peti- tioner, on November 10, 1974, filed timely exceptions to the Regional Director's report. In considering the Regional Director's Report on Objections and the Petitioner's exceptions thereto, the Board was of the view that Petitioner's Objections 1 and 3 raised issues more appropriately resolved after hearing. Accord- ingly, on January 17, 1975, the Board issued its Order Directing Hearing. Pursuant to that Order, a hearing was held on February 5 and 6, 1975, before Hearing Officer Leonard Cohen. All parties to the proceeding appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to adduce evidence bearing on the issues, and to file briefs with the Hearing Officer upon close of the hearing. On March 4, 1975, the Hearing Officer is- sued and served on the parties his Report and Rec- ' Local 250, Hospital and Institutional Workers Union, S.E.I.U, AFL- CIO. ommendations in which he recommended that Ob- jections 1 and 3 be overruled and, accordingly, that the results of the election be certified. Thereafter, the Petitioner, having received an extension of time in which to file exceptions, timely filed exceptions to the Hearing Officer's Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 Act to assert jurisdiction. 2. The'Petitioner and Intervenor are labor organi- zations claiming to represent certain employees of the Employer. 3. A question of representation affecting com- merce exists concerning certain 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 fol- lowing employees constitute an appropriate unit for the purpose of collective bargaining within the mean- ing of Section 9(b) of the Act: All employees employed by the Employer at its location at 1125-B Sir Francis Drake Boulevard, Kentfield, California, including housekeeping department, including maids, porters, mainte- nance men, janitors, laundry workers; dietary department, including cooks, kitchen helpers, tray girls, dishwashers; nursing department, in- cluding nurses aides, orderlies and child techni- cians; excluding registered nurses, licensed vo- cational nurses, registered physiotherapists, registered occupational therapists, office clerical employees, guards, and supervisors as defined in the Act. 5. On August 1, 1974, the Employer furnished the Regional Office an election eligibility list, as re- quired by Excelsior Underwear Inc., 156 NLRB 1236 (1966). The list contained the names and addresses of 82 eligible voters. On the day of the election, August 16, 1974, Em- ployer submitted to the Board agent and representa- tives of Petitioner and Intervenor an addendum to the Excelsior list 2 which contained the names of four additional employees not on the earlier list, deleted the names of three employees terminated since sub- 2 There is disagreement as to when the addendum was provided, the Em- ployer taking the position that the addendum was submitted at the preelec- tion conference, the Petitioner that it was submitted upon close of the elec- tion prior to tally. Under either circumstance the submission was a late one, the precise timing of which is not relevant to the merits of Petitioner's case. 219 NLRB No. 32 KENTFIELD MEDICAL HOSPITAL 175 mission of the earlier list, and indicated the transfer of one employee out of the appropriate unit. During the course of the election another employee, whose name did not appear on either the Excelsior list or the addendum, attempted to vote.3 Petitioner alleges that, in addition to the Employer's omission of 5 names, 14 addresses of eli- gible voters were incorrectly listed on the list. The Petitioner contends that the omissions and incorrect addresses either individually or in combination war- rant setting aside the election. Petitioner presented evidence of only seven incor- rect addresses. Of them, the Employer, at the hear- ing, presented uncontradicted evidence that six of those addresses were the most current addresses list- ed in its personnel files, so that the Employer can only be said to have been negligent in submitting one, incorrect address and omitting the names of five eli- gible voters. Although we have, in the past, drawn a distinction between the submission of incorrect ad- dresses and the omission of names from the Excelsior list,a we do not believe that even combining the Employer's inaccurate submission of one address with its failure to provide five additional names of eligible voters amounts to such insubstantial compli- ance with our Excelsior rule as to warrant setting aside this election. At most, the Employer's inadver- tence constitutes an error factor of approximately 7 percent. Under these circumstances, and in the ab- sence of any evidence whatsoever of the Employer's bad faith, we shall overrule Petitioner's Objection 1.5 Petitioner did not have an election observer during the election herein. On the morning of the election the Petitioner informed the Board agent conducting the morning session of the election that it was having trouble securing an observer and, further, handed the Board agent a letter signed by Petitioner's president which indicated the Petitioner's desire to challenge the ballots of 11 employees. The letter further set forth brief reasons for the challenges. The Board agent, after two initial refusals to take the letter on the ground that challenges by the parties were their own responsibility, accepted the letter without com- ment. Of the 11 individuals named in the letter, 4 ap- peared at the polls. The record is unclear on whether one or two appeared to vote at the morning session. The one that clearly did appear at the morning ses- 3 He voted under challenge . At the close of the election his ballot , with the ballots of four other employees who voted under challenge , was opened and counted pursuant to stipulation of the parties. See The Lobster House, 186 NLRB 148 (1970). S Cf. Pacific Gamble Robinson Co Omaha Branch d/b/a Gamble Robinson Co., 180 NLRB 532 (1970) (omitting I I percent of names from Excelsior list ground for setting aside election); Sonfarrel, Inc, 188 NLRB 969 (1971) (approximately 9 percent of eligible voters omitted). sion was challenged by the Board agent on behalf of Petitioner. The remaining two who appeared to vote did so at the afternoon session, for which time there had been a change in Board agents. The Board agent conducting the afternoon session was apparently not informed of the Petitioner's letter and permitted these two voters to vote unchallenged, so that a total of three of the four voters who appeared to vote were permitted to do so over Petitioner's letter-challenge. Petitioner, in its Objection 3, contends that, under circumstances where it could not secure an observer and the Board agent was aware of that fact, it was the Board agent's responsibility to make all chal- lenges on Petitioner's behalf pursuant to its letter- request. The Hearing Officer concluded that, inas- much as the record evidence was uncontroverted that one of the three unchallenged voters was an eligible voter, there was no reason to set aside the election herein since the votes of the remaining two voters who cast unchallenged ballots when coupled with the one unresolved challenge could not have affected the outcome of the election. We agree that one of the three voters who cast an unchallenged ballot was, in fact, an eligible voter and the ballots of the remain- ing two voters could not have affected the outcome herein. No prejudice to Petitioner could thus result from the Board agent's failure to make all requested challenges under these circumstances, and we there- fore need not reach the merits of Petitioner's conten- tion that the Board agent had a duty to make chal- lenges on Petitioner's behalf. We shall, accordingly, certify the results of the election .6 CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of. the valid ballots has not been cast for either Freight Checkers, Clerical Employees & Helpers Union, Local No. 856, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or Local 250, Hospital and Institution Workers Union, S.E.I.U., AFL-CIO, and that neither said labor or- ganization is the exclusive representative of all the employees in the unit herein involved, within the meaning of Section 9(a) of the National Labor Rela- tions Act, as amended. MEMBER FANNING, dissenting: I would direct a second election. The Board agent 6 Petitioner filed five objections in this proceeding . In its Order Directing Heating on Objections 1 and 3, the Board did not pass upon the merits of the remaining objections. Petitioner thus questions whether the scope of the Hearing Officer's authority was limited to receiving evidence on Objections I and 3 only. Implicit in our Order was the finding that Objections 2, 4, and 5 did not require a hearing. Upon consideration of the entire matter, includ- ing a review of Petitioner's Objections 2, 4, and 5, we adopt the Regional Director's recommendation that they be overruled. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conducting the morning session of the election ac- cepted a list provided by Petitioner which requested that certain challenges be made by the Board agent in the absence of an observer for Petitioner. The list contained brief reasons for the requested challenges. One voter on the list appeared to vote during the morning session and his vote was challenged by the Board agent. The Board agent conducting the af- ternoon session was not told about the list. He per- mitted three voters whose names appeared on the challenge list to vote without challenge. One of these has been found to be, in fact, an eligible voter. The fact remains, however, that the votes of the remain- ing two unchallenged voters coupled with the unre- solved vote of the individual challenged at the morn- ing session could produce a tie vote in this election. Under such circumstances, where the Board agent undertook to state the challenges of Petitioner, who could properly assume the morning session Board agent would inform her relief, if any, of the existence of the list,7 and where the vote could, conceivably, be tied,' I believe the omission of five names from the Excelsior list is a failure to comply sufficiently with that requirement and warrants conducting a second election? 7 See also H & L Distributing Company, 206 NLRB 169, fn. I (1973); N.L.R.B. v. Schwartz Brothers and District Record's Inc., 475 F.2d 926 (C.A. D.C., 1973). 8 The closeness of the vote is a factor of significance . Ben Pearson Plant, Consumer Division, Brunswick Corporation, 206 NLRB 532 (1973). See, e.g., Sonfarrel, Inc., 188 NLRB 969 (1971), where the petitioner lost the election by a minimum of 12 votes and yet the election was set aside because of the employer's inadvertent omission of five names from the Ex- celsior list. See also Pacific Gamble Robinson Co.,/Omaha Branch d/b/a Gamble Robinson Co., 180 NLRB 532 (1970), where petitioner conceivably lost the election by seven votes and the employer's inadvertent omission of four names from the Excelsior list constituted grounds for setting aside the election . Though the latter case speaks in terms of 4 out of 36 eligible voters having been omitted, or "more than II percent ," I view the result as appli- cable to the situation here, where the number of names omitted outnumber the difference in the vote and the Board agent undertook to state the chal- lenges but failed to carry through in that respect.