The Heartwood

THE HEARTWOOD 719 Heartwood Avenue Corporation d/b/a The Heart- wood and Hospital and Institutional Workers Local 250, Service Employees International Union, AFL- CIO Spring Road Corporation d/b/a Community Conva- lescent East; Louisiana Corporation, Inc. d/b/a Convalescent West; and Heartwood Avenue Corpo- ration d/b/a The Heartwood and Hospital and In- stitutional Workers Local 250, Service Employees International Union, AFL-CIO, Petitioner. Cases 20-CA-9799 and 20-RC-12272 July 22, 1976 the said labor organization is the exclusive bargain- ing agent for all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. [Direction of Election and Excelsior footnote omit- ted from publication.] 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully examined the record and find no basis for reversing her findings DECISION, ORDER, CERTIFICATION, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On April 9, 1976, Administrative Law Judge Earl- dean V. S. Robbins issued the attached Decision in this proceeding. Thereafter, Respondent Heartwood Avenue Corporation d/b/a The Heartwood filed ex- ceptions and a supporting brief. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Heartwood Avenue Corpo- ration d/b/a The Heartwood, Vallejo, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. CERTIFICATION OF REPRESENTATIVE It is hereby certified that Hospital and Institution- al Workers Local 250, Service Employees Interna- tional Union, AFL-CIO, has been designated and selected by a majority of the employees in Units A and B, found appropriate in Case 20-RC-12272, as their representative for the purposes of collective bar- gaining, and that pursuant to Section 9(a) of the Act DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge: These consolidated cases were heard before me in San Francisco, California, on March 3 , 1976. The charge was filed by Hospital and Institutional Workers Local 250, Ser- vice Employees International Union , AFL-CIO,' herein called the Union, on December 16, 1974 , and amended on March 17, 1975. The original charge and the amended charge were served on Respondent on December 16, 1974, and March 18, 1975 , respectively . The complaint issued March 31 , 1975, alleging that Respondent had violated Section 8(a)(1) of the Act . The petition in Case 20-RC- 12272 was filed by the Union on August 9, 1974, and served on Spring Road Corporation d/b/a Community Convalescent East , herein called Convalescent East; Loui- siana Corporation , Inc. d/b/a Convalescent West , herein called Convalescent West ; and Heartwood Avenue Corpo- ration d/b/a The Heartwood , herein called Respondent or Heartwood. Pursuant to a Stipulation for Certification Upon Consent Election approved on October 4, 1974, an election by secret ballot was conducted on November 7, 1974, in three separate units herein referred to as Unit A (Convalescent East), Unit B (Convalescent West), and Unit C (Heartwood). In Unit A, 19 ballots were cast for the Union and 11 against . In Unit B, 14 ballots were cast for the Union and 8 against. In Unit C, 6 ballots were cast for the Union and 7 against. Two ballots were challenged in Unit C, one of which was subsequently resolved . The re- maining challenge is not determinative . On November 14, 1974, the Union filed timely objections to the election in Unit C. On that same date, the Employer filed identical timely objections to the elections in all three units. At the hearing herein, the Employer withdrew its objections to the election in Unit C. Subsequently, the Board ordered that a hearing be held to resolve the issues raised by Petitioner's Objections 2, 5, 6, and 7 and by Employer's Objection 16 and that such hearing be consolidated with the hearing in Case 20-CA-9799. At the hearing herein , the Employers withdrew their objections to the election in Unit C. i The Union's name appears as amended at the hearing 225 NLRB No. 94 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The sole issue in the unfair labor practice case is whether Respondent threatened employees with reduced working hours if the employees chose the Union as their collective- bargaining representative. Petitioner's objections to the election in Unit C (Heart- wood) involved herein are: 2. The Employer, by its agents, intimidated eligible voters with loss of employment opportunities if they supported the Union. 5. The above-named Employer, through its agents, made material misrepresentations of fact concerning the Union's policies, programs, and costs of member- ship, including Union dues and initiation fees, in such a manner as to provide the Union no opportunity to reply. 6. The above-named Employer, by its agents, threatened to close the facility and take other retalia- tory measures if the Union won the election. 7. The above-named Employer, by its agents, inter- fered with, restrained, and/or coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act. The Employers' objection involved herein is: 16. The Union promised selected employees that the normal Union initiation fee would be waived if they voted for the Union and/or if the Union won the election. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a California corporation, is engaged in the operation of an intermediate health care facility in Vallejo, California. Respondent, in the normal course and conduct of its business operations, had gross revenues in excess of $100,000 during the calendar year 1974. During that same period of time Respondent received revenue in excess of $5,000 from the State of California Medi-Cal program The complaint alleges, Respondent admits, and I find that Respondent is, and has been at all times material here- in, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act II. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Etta Smith is employed at Heartwood as a cook. She also regularly works at Oakwood, another health care facility associated with Heartwood.2 Smith testified that about No- vember 1, 1974,3 Agnes Mack, food service supervisor,4 told her, "Etta Mae you know you can't work like this. The Union won't allow it." On cross-examination she testified: Q. Prior to that election , did Mrs. Mack ever come up and ask you questions about your involvement with the union? A. She never asked me. Q. In fact, you never told her that you had any particular involvement with the union ; isn't that cor- rect? A. Yes. Q. She never told you that you were supposed to vote against the union? A. She never told me that. Q. She never expressed any opinion in any way in that regard ; isn't that right? A. Only when she said that if I joined the union the union would disallow it. Q. Disallow what? A. Well, I would be cut down on my days and hours. I had been working at both places so I couldn't work but one place. Q. Isn't it true Mrs Mack indicated that that was her opinion as to what happened , based on a prior contract? A. We didn't talk about no other contract because I didn't know about it. Pamela Smith, also employed in the kitchen at Heart- wood, works as a cook 5 from 6 a.m. to 2:30 p.m. and as a dietary aide 6 from 4:30 p.m. to 9 p.m. I She testified that, on the afternoon of November 7, Mack told her that if the Union came in she would have to be either a cook or an aide, but she could not be both because the Union would not allow it. Mack testified that in November 1974 she had a conver- sation with Etta Mae Smith and Pamela Smith. According to Mack, she said if one was employed as a cook one would work as a cook and if one was employed as a helper one would work in that capacity In response to leading ques- tions about whether she explained the basis for her state- ment, she testified "that is the only statement I made." 2 The parties stipulated that Oakwood, Heartwood, Convalescent East, and Convalescent West are separate corporations which are loosely associ- ated and referred to collectively as the Medical Manor Group for advertis- ine purposes All dates hereinafter will be 1974 unless otherwise indicated 4 The parties stipulated that Mack had the authority to hire and fire and to effectively recommend same Accordingly, I find that she is a supervisor within the meaning of Sec 2(l 1) of the Act 5 I do not credit Mack's testimony that Pamela Smith did not work as a cook in the morning Her testimony was essentially based upon Heartwood being on a five-meals-a-day plan with the meal prepared by Smith being a continental breakfast On rebuttal, Smith testified that although other facili- ties in the Medical Manor Group were on a five-meals-a-day plan, at that time Heartwood served only three meals a day She prepared breakfast She prepared cereal, eggs, pancakes, muffins, and toast There was a dietary aide to assist her Respondent offered no testimony to rebut this 6 A dietary aide pours beverages, washes dishes, and otherwise assists in the kitchen 7 She works some days as a cook and some days as an aide in a relief capacity She never works as a cook and an aide on the same day THE HEARTWOOD 721 When specifically asked, "Did you or did you not say any- thing during this conversation in connection with the prior union contract that had been in effect at the Heartwood and the situation there?" Mack testified that she said she was not allowed to use people in another capacity. If she hired them as a cook that is what they work in and not as a helper. On cross-examination she testified that a question came up about hours worked and she said, "Due to past experiences that I had that if one were employed as a cook they could work as a cook only and if they were employed as a helper they could work as a helper only." She could not recall who initiated the conversation. Mack admits that if restricted to working only in one classification Smith's hours would be reduced. She does not specifically deny Etta Smith's testimony. I credit the testimony of Etta Smith and Pamela Smith. They both impressed me as honest, sincere witnesses and Mack does not deny Etta Smith's testimony and her initial testimony essentially corroborates that of Pamela Smith. It was only after much leading that finally testimony came out that she said her remarks were based on her prior expe- rience. I discredit this testimony. I find that, by these statements, Mack threatened Pame- la Smith and Etta Smith that their working hours would be reduced if the Union was selected as their collective-bar- gaining representative. I have considered, and rejected, the argument that these were isolated incidents. A threat of a major reduction in the working hours of 2 employees in a unit of only 15 employees cannot be considered isolated. Accordingly, I find that by threatening to reduce the working hours of employees Pamela Smith and Etta Mae Smith Respondent violated Section 8(a)(1) of the Act. Q. You just testified she said those that came in later would have to pay? A. Yeah. If I am not in a union and then if I came to work later and that way I would have to pay. Q. So if-What she told you was if a union won the election that after that if new employees came they would have to pay initiation fees? A. Yes. JUDGE ROBBINS: Which one did she say? Did she say that new employees after the election would have to pay initiation fees, or did she say that employees who did not attend the meeting would have to pay? THE WITNESS: The one that attended the meeting wouldn't have to, but newcomers would if there were a union to come in. JUDGE ROBBINS: Did she explain what she meant by newcomers? Is that the terms she used; newcomers? THE WITNESS: Yes. It is like if I- JUDGE ROBBINS: She-Did she explain what she meant by newcomers? THE WITNESS: Yes. JUDGE ROBBINS: What did she say? THE WITNESS: If a new person comes in after the elec- tion was won. JUDGE ROBBINS: Comes in where? THE WITNESS: Work. JUDGE ROBBINS: Comes to work? THE WITNESS: Right. They would have to pay. JUDGE ROBBINS: Did she mention in any way em- ployees who were presently working for the company who did not attend the union meetings? THE WITNESS: No. IV. THE EMPLOYER'S OBJECTIONS TO THE ELECTION The Employer objects that the Union promised selected employees that the normal initiation fee would be waived if they voted for the Union and/or if the Union won the election. In support thereof, Roxie Lee Robinson, an em- ployee at Convalescent East, testified on direct examina- tion that in October she attended a meeting conducted by Union Business Agent Ernestine Roberts, at which about 17 to 20 employees were present. According to Robinson, Roberts said, "Those that were there wouldn't have to pay initiation fees, you know, if it is a union." She further testi- fied that she could recall some portions of what Roberts said but not all. On cross-examination she testified: Q. (By Ms. Stolmack) Can you describe or can you relate precisely what Mrs. Roberts said regarding the waiver of initiation fees: A. She just said that those that attend the meetings and if there was a union well we wouldn't have to pay an initiation fee. Q. Did she tell you that you would be the only ones to have the fee waived? A. Yes, if those that came in later-they would have to pay. Q. Later than what? A. If there was a union, which is not a union. It is clear from the totality of Robinson's testimony that Roberts did not actually say that initiation fees would be waived only for those attending union meetings. It is equal- ly clear that Robinson does not recall what Roberts said. I find her testimony unreliable and insufficient upon which to base a finding as to what Roberts said. Accordingly, I find that the Employers have not met the burden of estab- lishing that the Union engaged in objectionable conduct under the rationale of N.L.R.B. v. Savair Manufacturing Company, 414 U.S. 270 (1973). Accordingly, I recommend that Employers' Objection 16 be overruled and that the results of the election held on November 7, 1974, in Units A and B be certified. V PETITIONER'S OBJECTIONS A. The Alleged Material Misrepresentation-Objection 5 Petitioner's Objection 5 alleges that the Employers made material misrepresentations of fact concerning the Union's policies, programs, and costs of membership, including union dues and initiation fees, in such a manner as to pro- vide the Union no opportunity to reply. The only evidence offered in support thereof involves the distribution of a sample check purporting to reflect the effect of union dues on an employee's net pay. 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Etta Smith testified that she received with her regular payroll check a sample check representing what she would save in a year if she did not join the Union. On direct examination, when asked if she received anything unusual with her paycheck prior to the election, she said yes and proceeded to testify as set forth above. On cross-examina- tion, she testified that she thought she received it after the election. Pamela Smith testified that she also received a sample check representing the amount of union dues for a year.' Both she and Etta Smith testified that the amount was around $100. As to when she received the sample check, Pamela Smith testified: Q. (By Ms. Stolmack) Did you receive the docu- ment you referred to as the check put out by the com- pany prior to the election? A. I am almost sure. I can't-it is so long ago I can't really remember. But, I do remember the check and it said what I said-you know. Q. Did you get it before the election? A. It could have been. s a o e a JUDGE ROBBINS: Was it before the election? THE WITNESS: I am pretty sure it was. I can't really tell. Charlotte Offhouse, administrator at Heartwood, admits that sample checks were distributed to employees at Heart- wood. However, she testified that the sample check showed the net amount of the payroll check less $6. Her intention, according to her, was to give employees an example of what their paychecks would be if union dues were deduct- ed. She testified that she cannot recall the date the sample checks were distributed, that the November paydays were November 5 and 20 but she is not sure whether they were distributed on those days or in September or October. Off- house further testified that, as she recalls, she got the $6 figure from the Employers' attorney. I do not credit Offhouse's testimony that she cannot recall whether the sample checks were distributed before or after the election. I see no obvious purpose for doing so after the election and although specifically asked, Respondent's witnesses offer no explanation. I conclude that the sample checks were distributed prior to the election. The essence of Petitioner's argument is that the amount of dues was misrepresented and that the misrepresentation was substantial because of the low wages in convalescent hospitals. Petitioner's president, John Ring, testified that he was in overall charge of Petitioner's organizational cam- paign among the Employers' employees but that Roberts was in direct charge. Ring testified that Roberts informed him of the sample paychecks prior to the election but he does not recall how long prior thereto. Ring further testi- fied that because of the generally low wages in the indus- try, it is the Union's normal practice to establish dues of $5 in newly organized convalescent facilities. Respondent argues that the sample checks were not mis- presentations, that Petitioner's constitution and bylaws 8 According to Pamela Smith, this explanation was on a piece of paper attached to the sample check provide in article V, section 2, for minimum dues of $5 a month 9 plus an additional $1 to be set aside for the strike fund. Petitioner counters with the constitution and bylaws of the International Union which provides that a local union may reduce dues to no less than $2 monthly. The Board's rules as to misrepresentations sufficient to cause an election to be set aside is set forth in Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962). In that case the Board held at 224: We believe that an election should be set aside only where there has been a misrepresentation or other sim- ilar campaign trickery which involves a substantial de- parture from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election. I conclude that the sample checks, which reflected dues in the amount set forth in the Union's constitution and which was only $1 more than the dues Petitioner claims it would probably charge, do not constitute a substantial mis- representation. But even assuming arguendo that because of the Employers' wage rates, the $1 would be a significant amount, Petitioner has failed to establish that it had no opportunity to effectively reply. I find the evidence insuffi- cient to establish when, prior to the election, the checks were distributed. Accordingly, I recommend the Petitioner's Objection 5 be overruled. B. The Raffle 1 ° Pamela Smith testified that for 3 or 4 days prior to the election, there was a table full of groceries by the nurse's desk with a sign. She is not sure what the sign stated but she thinks it stated, "This is the groceries you could buy with your union dues." As she entered the polling place to vote on November 7 she was given a raffle ticket for the groceries. It is well established that the use of a raffle as preelection propaganda is not per se objectionable. Wheth- er it interfered with the exercise of a free choice in the election depends upon the surrounding circumstances. American Induction Heating Corporation, 221 NLRB 180 (1975); Marathon LeTourneau Company, 208 NLRB 213 (1974). Petitioner has presented no evidence establishing circumstances which would render the raffle herein objec- tionable. Accordingly, I recommend that Petitioner's Ob- jection 7 be overruled to the extent it is based on this con- duct. 9 The International constitution provides that all dues be increased by no less than 5 cents no later than September 1, 1972 Petitioner's vice president, Willie Price, concedes that this raises Petitioner's normal minimum dues to $5 50 but testified that in special circumstances, $5 dues are permitted at a newly organized facility 10 The Employers object to a consideration of the raffle since it was not specifically set forth in Petitioner's objections However, I find that this conduct comes within the scope of Petitioner 's Objection 7 THE HEARTWOOD 723 C. Objection 6 The Union presented no evidence in support of Objec- tion 6. Accordingly, I recommend that Petitioner's Objec- tion 6 be overruled. D. Mack's Statements-Objection 2 I have found above that Mack's statements to Etta Mae Smith and to Pamela Smith are violative of Section 8(a)(1) of the Act. I further find that these statements interfered with the election. In reaching this conclusion, I have care- fully considered the Employers' argument that this conduct is not sufficient to warrant setting the election aside. How- ever, I find that statements to these two employees to the effect that their working hours would be reduced by 40 to 60 percent is not insubstantial or isolated, particularly when there are only 15 employees in the unit and the elec- tion result was 8 to 6 against the Union with one undeter- minative challenged ballot. See Standard Knitting Mills, Inc., 172 NLRB 1122 (1968); Vincent's Steak House, Inc., 216 NLRB 647 (1975). Accordingly, I recommend that Petitioner's Objection 2 be sustained, and that the results of the election held on November 7, 1974, in Unit C (Heartwood) be set aside. (a) Post at its place of business in Vallejo, California, copies of the attached notice marked "Appendix." 12 Cop- ies of said notice, on forms provided by the Regional Di- rector for Region 20, after being duly signed by its author- ized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS RECOMMENDED that Petitioner's Objection 2 be sus- tained and that the election held on November 7, 1974, in Unit C be set aside and a second election by secret ballot be conducted among the employees in Unit C, at such time and manner as the Regional Director deems appropriate. IT IS ALSO RECOMMENDED that the remainder of Petitioner's objections be overruled. IT IS FURTHER RECOMMENDED that the Employers' objec- tions to the conduct of the election in Units A and B be overruled in their entirety, and that the Board certify the results of the elections held on November 7, 1974, in Units A and B. CONCLUSIONS OF LAW 1. Respondent, Heartwood Avenue Corporation d/b/a The Heartwood, Vallejo, California, is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees with reduced working hours if the employees chose the Union as their collective- bargaining representative, Respondent has interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby recommend the follow- ing: ORDER 11 Heartwood Avenue Corporation d/b/a The Heartwood, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with reduced working hours if they choose the Union as their collective-bargaining rep- resentative. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act- " In the event no exceptions are filed as provided by Sec 10246 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 thereto shall be deemed waived for all purposes 12 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board," shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties were represented and presented evidence in support of their respective positions, it has been found that we have violated the National Labor Relations Act in certain respects and we have been ordered to post this notice and to carry out its terms. The National Labor Relations Act gives all employees the following rights: To organize, themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In recognition of these rights , we hereby notify our em- WE WILL NOT in any like or related manner interfere ployees that: with, restrain, or coerce you in the exercise of rights WE WILL NOT threaten to reduce your hours if you guaranteed in the Act. choose Hospital and Institutional Workers Local 250, Service Employees International Union AFL-CIO, or HEARTWOOD AVENUE CORPORATION any other labor organization as your collective -bar- d/b/a THE HEARTWOOD gaining representative.