Niagara Froniter Methodist home, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Niagara Frontier Methodist Home, Inc., and Niagara Frontier Nursing Home, Inc., d/b/a Beechwood Residence and Nursing Home and Buffalo and Western New York Hospital and Nursing Home Council, AFL-CIO Petitioner. Cases 3-RC-6813 and 3-RC-6814 September 27, 1977 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered objection to an election held on February 17, 1977,1 and the Regional Director's report recommending disposi- tion of same.2 The Board has reviewed the record in light of the exceptions and briefs, and finds merit in the Employer's exception. Accordingly, the Board adopts the Regional Director's findings and recom- mendations only to the extent consistent herewith.3 The Regional Director found that, by certain statements, the Employer tended to convey to employees that, in the event the Petitioner won an election, it would enter into negotiations with a fixed inflexible position regarding wages, benefits, and other terms and conditions of employment, thereby conveying to employees the message that it would be futile for them to select the Petitioner as their collective-bargaining representative. He found that the statements also conveyed a threat of loss of benefits. The statements in issue are contained in five letters sent to the employees and in two speeches which were read to the employees. Briefly they are as follows: The first letter, dated December 14, 1976, ex- pressed the Employer's confidence that the employ- ees would once again reject the Union's "attempt to get a piece of [the employees'] hard-earned money in the form of dues, in exchange for vague promises of benefits which the Union cannot deliver without the consent of Beechwood." In the next letter of January 11, 1977, the Employer stated: The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was: 56 for, and 85 against, the Petitioner; there were 2 challenged ballots, an insufficient number to affect the results. 2 All dates referred to herein occurred in 1977 except as otherwise stated. See pertinent portion of the report attached hereto. :3 In the absence of exceptions, we adopt, pro form.a, the Regional Director's findings as to the objections he recommended be overruled. 232 NLRB No. 59 You may have noticed a recent article in the Buffalo Evening News in which Frank Ervolino, Executive Secretary of the union, stated that because of the frozen reimbursement rates, Nursing Homes under contract cannot grant wage increases negotiated by unions. The Employer summed up by stating: You should wonder . . . exactly what the union claims it is going to get for you in exchange for your dues money. I believe you would be throwing your hard-earned money down the drain. In a letter of January 18, the Employer, after noting that it had made every possible adjustment within the reimbursement formula which is imposed by the State of New York, stated, "The union would be powerless to change your wages at this time, and they know it." The last letter,4 dated February 9, referred to the fact that wage adjustments had been and would continue to be made within the reim- bursement rates imposed by New York State and questioned what concrete benefit the Union intended to seek if it should win the election. Included was the following statement: In order to obtain these wages, benefits, and working conditions, no employee has been re- quired to pay dues or otherwise contribute any part of his pay to a labor union. As you know, paying union dues could actually result in less take home pay for you and would be a severe hardship for our many part-time employees. Meanwhile, in a series of speeches to small groups of employees from February 3 through 7,5 the Employer stated: The Union can make promises such as stated at their meetings . . . these promises are entice- ments. They are negotiable issues-wage controls remain in force through control of reimbursement by the State of New York. Later in that speech the Employer stated: While we have not been able to give all the increases we would like, due to control by the 4 In a January 26 letter, the Employer mentioned that the Operating Engineers had not received under its contract with the Employer any more wages and fringe benefits for the employees that union represented than the unrepresented Beechwood employees. It further noted that the represented employees actually took home less than nonunion employees earning the same amount. I There was also a makeup meeting on February 12. 384 NIAGARA FRONTIER METHODIST HOME Health Department-we have kept our word . . . And the Employer's final speech on February 15 to all employees contained the following statements: Our wages are at least as good as any in the industry, and you are fooling yourself if you think that getting the Union in here is going to result in any immediate increase in your wages. Those wage rates are fixed by the reimbursement plan of the State of New York, and we are doing everything we can to get more for our employees. Later the Employer stated: Once again, Beechwood pays benefits that are comparable to any in the industry. You should know that you may be jeopardizing these benefits by letting the Union in here. When the Union negotiates a contract, they can negotiate away existing benefits in order to get something they want, such as a union shop clause. Still later, the Employer stated: Remember that the only way a union can enforce its demands is by calling a strike. Unlike the Regional Director, we conclude that the above statements taken in their total context do not evidence that the Employer conveyed or tended to convey to employees that it would refuse to bargain by entering into negotiations with a fixed inflexible position regarding wages. The Regional Director acknowledged in his report that between 80 to 90 percent of the Employer's patients have the cost of services provided by the Employer paid in full or part by Medicaid. Medicaid rates are set by the New York State Department of Health. As described in a newspaper report from the Buffalo Evening News of June 26, 1976, the State of New York is engaged in a campaign to hold the line on these rates. Obviously, the Employer's income was, and would be, greatly affected by such a freeze. Correspondingly, its ability to increase wages was similarly affected. Thus, even if, as concluded by the Regional Director, the Employer's statement that "wage rates are fixed by the reimbursement plan of the State of New York" was "not necessarily true" because the reimburse- ment rate encompassed all costs of the Employer not just those expended on labor, the fact remains that whatever costs were involved had to be met in large measure out of the funds provided by the State. It is also apparent that each recurring cost would have a I The five letters, dated December 14. 1976, January II, January 18. January 26, and February 9, which were provided by the Employer dunng fixed base and that its budgetary range would be closely circumscribed by the amount of every other regular or anticipated cost. Consequently, it would be pure conjecture on our part to say that the Employer could lower or raise one cost item at the expense of another. In view of the foregoing, we find that the Employer's statements did not have the tendency to convey to the employees that the Employer would enter contract negotiations with a fixed inflexible position. Rather, we believe that such statements constituted a reasonable expression of the Employ- er's view of the realities of the situation in light of the State's attempt to hold the line on Medicaid payments. Thus, the Employer's statement to the effect that the Union can only enforce its demands by striking did not in this context rise to the level of conveying to the employees the inevitability of a strike due to the futility of attempting to reach an agreement in negotiations. As to the loss of benefits, we are unable to perceive anything in the Employer's remarks which reason- ably could be construed as a threat of loss of benefits. Thus, we shall overrule the objection in its entirety. Inasmuch as we have overruled the objections, and as the tally of ballots reveals that the Petitioner has not received a majority thereof, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Buffalo and Western New York Hospital and Nursing Home Council, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. APPENDIX OTHER CONDUCT NOT SPECIFICALLY ALLEGED IN OBJECTIONS The investigation revealed that during the election campaign the Employer sent to employees eligible to vote, five letters, pertaining to the Petitioner and the up-coming election." In addition, the Employer's Executive Director also testified that during the campaign he held two meetings of employees at which he read from prepared texts. The first meeting was actually a series of approxi- mately twenty-five small group meetings of employees held by the Employer in the period of time from February 3 the investigation, are attached hereto as exhibits 2, 3, 4. 5, and 6 respectively [omitted from publication ]. 385 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through February 7, with a make-up meeting on February 12 for whomever missed the earlier meetings. The second meeting was held on February 15, beginning at 2:00 p.m. for whomever was scheduled to work at the time. During the investigation the Executive Director provided copies of the said speeches 12 from which he testified that he did not deviate during their presentations, except to apologize for having to read them.' 3 The undersigned, having fully and carefully reviewed these various pronouncements made by the Employer during the campaign, concludes that when viewed in their total context they conveyed to employees that in the event the Petitioner won the election, the Employer would enter negotiations with Petitioner with a fixed position regarding employees' wages, benefits and other terms and conditions of employment, and as such conveyed to employees that it would be futile for them to select the Petitioner as their collective bargaining representative. In that regard, the undersigned notes the Employer's reference in its February 15 speech that: "...our wages are at least as good as any in the industry, and you are fooling yourself if you think that getting the Union in here is going to result in any immediate increase in your wages. Those wage rates are fixed by the reimbursement plan of the State of New York and we are doing everything we can to get more for our employees." The contention that wage rates are fixed by a reimburse- ment plan is not necessarily true, as the reimbursement rate is designed to cover an employer's total costs, including such items as administration, insurance and security as well as labor costs. Nowhere does the rate plan specify or require that an employer allocate a certain percentage thereof for labor costs. Rather, it is certainly conceivable that a union seeking a certain wage rate increase could as a quid pro quo, modify other proposals, to enable the employer to make adjustments. Thus, it appears that the Employer's statement in this regard reveals a fixed position of its own making and within its own control. The Employer in this same vein, stated in its first speech that: The union can make promises such as stated at their meetings . . . These are enticements. They are negotia- ble issues-wage controls remain in force through control of reimbursement by the State of New York. and While we have not been able to give all the increases we would like, due to controls by the Health Depart- ment-we have kept our word .... " t2 A copy of the first speech (hereinafter "first speech"), titled "Employee Small Group Meetings-February 1977", is attached hereto as Exhibit 7. A copy of the second speech, titled "Arthur E. Shade-Final Speech", is attached hereto as Exhibit 8 [omitted from publication . Although this speech indicates that it was presented on February 16 as well as February 15, there is no evidence that the meeting was held on February 16 although it may have been the Employer's original intent to hold it on that date. 13 In this connection various employee witnesses in behalf of Petitioner The Employer appears to be saying that the Petitioner would be powerless to obtain better wages for bargaining unit employees, because of the Employer's fixed position that it will rely on its self-determined criteria for determin- ing wage levels. In fact, in its letter of January 18, the Employer stated "The Union would be powerless to change your wage rates at this time, and they know it." In its February 15 speech, the Employer, in discussing existing benefits, stated that "You should know that you may be jeopardizing those benefits by letting the union in here." The Employer then went on to state that when a union negotiates a contract it can negotiate away existing benefits, and added, "The best way to guarantee that your existing benefits are not jeopardized . . . is to vote 'no' The same theme was continued in the Employer's February 9 letter wherein it indicated that benefits and wages had been up-graded as frequently as possible within reimbursement rates, and that paying union dues (while not receiving any additional benefits) "could actually result in less take home pay for you." In addition, as indicated in its very first statement 14 regarding the Petitioner, which set the tone for its later pronouncements, the Employer stated that ". .. the union cannot deliver without the consent of Beechwood." Further, the Employer's January II letter made reference to and, it would appear, took out of context, certain statements of a representative of the Petitioner which appeared in an article in the Buffalo Evening News ' 5 to the effect that because of frozen reimbursement rates, other nursing homes were unable to pay the wage increases negotiated by Unions. The Employer summed up by stating that "You should wonder . . . exactly what the union claims it is going to get for you in exchange for your dues money. I believe that you would be throwing your hard-earned money down the drain." As yet another indicator of its preset fixed refusal to bargain, the Employer stated in his February 15 speech that, "The only way a union can enforce its demands is by calling a strike" which statement, when read in conjunction with its previous statements, tended to convey to employ- ees the inevitability of a strike due to the futility of attempting to reach an agreement in negotiations. In this connection, the undersigned notes that nowhere in its letters or speeches does the employee acknowledge that it would have an obligation to bargain with the Petitioner in the event that a majority of its employees selected it as their collective bargaining representative. Thus, on the basis of the foregoing, the undersigned concludes that the aforementioned speeches and letters, when viewed in the total context of the Employer's campaign, tended to convey to employees that the Employer would enter into contract negotiations with a who were in attendance at either or both meetings testified that it appeared that the Employer was reading from the speech and did not deviate from the papers before him in reading. "1 As set forth in the December 14, 1976 letter to employees. 15 A copy of the Article, provided by the Employer, which appeared in the June 26, 1976, edition of the Buffalo Evening News is attached hereto as Exhibit 7 [omitted from publication]. It does not appear that the said article was given to employees as part of the Employer's campaign material. 386 NIAGARA FRONTIER METHODIST HOME fixed, inflexible position regarding wages, benefits and other terms and conditions of employment. It is further concluded that the Employer conveyed to employees the message that it would be futile for them to select the Petitioner as their collective bargaining representative, as not only would employees fail to benefit from such a selection, but they also could lose certain benefits which they already enjoyed. As the Board stated in The Trane Co., 137 NLRB 1506, 1510, "There is no more effective way to dissuade employees from voting for a collective- bargaining representative than to tell them that their votes for such a representative will avail them nothing." See also Marathon Metallic Building Company, 224 NLRB 121 (1976); GTE Sylvania Incorporate4 227 NLRB 146 (1976). The undersigned therefore recommends that this other conduct which was not specifically alleged by Petitioner in its Objection but which was revealed during the investiga- tion be found to constitute grounds to warrant the setting aside of the election. 387