Sutter Roseville Medical Center

218 324 NLRB No. 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 In light of the number of voters in dispute, Member Higgins stat- ed in dissent that he would have conducted the election and im- pounded all ballots until the Board resolved the issue of the clinical partners’ supervisory status. 2 U.S. Family Care San Bernardino, 313 NLRB 1176 (1994). Sutter Roseville Medical Center and California Nurses Association, Petitioner. Case 20–RC– 17144 August 11, 1997 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS The National Labor Relations Board has considered objections to an election held on September 26 and 27, 1996, and the Acting Regional Director’s report rec- ommending disposition of them. The election was con- ducted pursuant to a Decision and Direction of Elec- tion. The tally of ballots shows 195 for the Petitioner, and 101 against, with 80 challenged ballots, a number insufficient to affect the outcome of the election. The Board has reviewed the record in light of the exceptions and briefs and has decided to adopt the Acting Regional Director’s findings and recommenda- tions, to the extent consistent with the rationale set forth in this decision, and finds that a certification of representative should be issued. The Petitioner seeks to represent a unit of all the Employer’s registered nurses, including those des- ignated as clinical partners. The Employer contends that all clinical partners are supervisors within the meaning of Section 2(11) of the Act and must be ex- cluded from the unit. This supervisory issue, and ob- jections by the Employer to the prounion activities of some clinical partners, have been the main points of contention in this proceeding. After an extensive preelection hearing, the Regional Director for Region 5 issued a Decision and Direction of Election finding that the clinical partners were not statutory supervisors and thus were eligible to vote in the unit as defined. The Employer filed a request for review of this determination with the Board. On Sep- tember 27, 1996, the Board issued an Order stating that the request for review had raised substantial issues with respect to the Regional Di- rector’s finding that the Clinical Partners’ role in hiring and transfers does not establish supervisory authority. However, the Board believes that this issue can best be resolved through the use of the Board’s challenge procedure. Accordingly, the Regional Director’s Decision is amended to per- mit the Clinical Partners to vote subject to chal- lenge, and the Request for Review is denied in this and all other respects. [Fns. omitted.]1 As indicated above, a majority of unit employees voted for representation by the Petitioner. The chal- lenged ballots, including those cast by clinical partners, were not sufficient in number to affect the election re- sult. The Employer filed timely election objections re- iterating its allegation that the clinical partners were supervisors and further alleging that the prounion ac- tivities of clinical partners during the preelection pe- riod had interfered with employees’ free choice in the election. The Acting Regional Director recommended overruling the Employer’s objections in their entirety. Reasoning that the Board had ‘‘neither remanded the issue of their [the clinical partners] eligibility to the Region for reconsideration, nor abandoned the conclu- sions reached in the Decision and Direction of Elec- tion,’’ he relied on the Regional Director’s preelection report to find that the clinical partners were not super- visors. The Acting Regional Director therefore con- cluded that the alleged prounion conduct of unit em- ployees was not objectionable. We agree with the recommendation to overrule the Employer’s objections, but we do not rely on the Act- ing Regional Director’s analysis. Based on the record before us, primarily consisting of the evidence intro- duced at the preelection hearing, we are unable to de- termine whether clinical partners are statutory super- visors because of their role in hiring and transfers. As- suming arguendo, that clinical partners are supervisors, however, we find that the prounion conduct alleged by the Employer could not reasonably have affected the election. The prounion activities of statutory supervisors may constitute objectionable conduct warranting setting aside an election in two situations: (1) when the em- ployer takes no stand contrary to the supervisors’ prounion conduct, thus leading the employees to be- lieve that the employer favors the union; or (2) when the supervisors’ prounion conduct coerces employees into supporting the union out of fear of retaliation by, or rewards from, the supervisors.2 Because the Em- ployer undisputedly communicated its antiunion posi- tion to its employees, the issue in this case concerns the latter situation. The evidence submitted by the Employer in support of its objections consists of an affidavit from Dorothea Dix, director of Telemetry, Oncology, and Special Care, and copies of two letters allegedly distributed to the Employer’s registered nurses. Viewing this evi- dence in a light most favorable to the Employer, it shows: that the names of 19 clinical partners appeared in a list of 52 registered nurses who endorsed the Peti- tioner; that brief, individual written statements of sup- port by 7 clinical partners appeared with similar state- ments by other unit nurses in a union campaign docu- ment; and that clinical partners, unidentified by name VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00218 Fmt 0610 Sfmt 0610 D:\NLRB\324.026 APPS10 PsN: APPS10 219 SUTTER ROSEVILLE MEDICAL CENTER 3 NLRB v. San Antonio Portland Cement Co., 611 F.2d 1148, 1151 (5th Cir. 1980). Accord: Wright Memorial Hospital v. NLRB, 771 F.2d 400, 405 (8th Cir. 1985). See also NLRB v. Hawaiian Flour Mill, Inc., 792 F.2d 1459, 1463–1464 (9th Cir. 1986). 4 U.S. Family Care San Bernardino, supra at 1176; Sil-Base Co., 290 NLRB 1179, 1181 (1988). 5 Wright Memorial Hospital v. NLRB, supra. 6 E.g., Cal-Western Transport, 283 NLRB 453, 455 (1987), enfd. 870 F.2d 1481 (9th Cir. 1989). 7 As previously stated, we are unable to resolve the issue of the clinical partners’ supervisory status based on the record before us. In these circumstances, another hearing, or at least an opportunity for the parties to present additional evidence, would be necessary to determine this issue. Holding such a hearing would not change the result of the election because the clinical partners’ challenged ballots are nondeterminative and we have found that, even if they are super- visors, they did not engage in objectionable conduct. We therefore see no basis for frustrating the majority choice of undisputed unit employees by delaying the Petitioner’s certification. We recognize the uncertainty created by the continuing debate over the inclusion of clinical partners in the unit, but this uncertainty can be resolved through the bargaining process or through the timely filing of a unit clarification petition. or in number, were present at various polling places during the election. The Employer has supplemented this evidence with an offer to prove, through the testi- mony of two clinical partners, that clinical partners so- licited authorization cards on behalf of the Petitioner, expressed their support for unionization at employee meetings sponsored by the Petitioner, and urged other nurses to vote for the Petitioner. The Employer further offers to prove, through the testimony of care coordi- nator Dorothy Hoffman, that a clinical partner told Hoffman that her job would be protected if she voted for the union. The Employer’s evidence and offer of proof fail to establish a prima facie case of objectionable prounion supervisory conduct. Initially, we emphasize that, al- though the Employer’s objections alleged that clinical partners coerced employees by promising benefits if they voted for the Petitioner and by threatening repris- als if they voted against it, the Employer has presented no evidence whatsoever of threats or promises of bene- fits by clinical partners. The absence of such evidence is significant in considering the conduct that the Em- ployer has specifically identified. As to the solicitation of authorization cards, such activity by supervisors is not objectionable where, ‘‘nothing in the words, deeds, or atmosphere of a supervisor’s request for authoriza- tion cards contains the seeds of potential reprisal, pun- ishment or intimidation.’’3 Similarly, supervisory state- ments endorsing the union and pointing out the pos- sible benefits of union representation, including the possibility of better wages and benefits and protection from job loss, are not inherently coercive and are not objectionable when made without threats of retaliation or reward.4 In these circumstances, such statements are ‘‘permissible expressions of personal opinion.’’5 Furthermore, in analyzing the impact of prounion supervisory conduct on an election, the Board also considers the nature and degree of authority possessed by those engaged in the prounion activity, and their concomitant ability to reward or punish unit employ- ees.6 The clinical partners here have no supervisory authority over their nursing peers in the bargaining unit at issue in this election proceeding. Their supervisory authority, if it exists, is limited to the hiring and trans- fer of technical and service employees who are rep- resented in a separate bargaining unit. Thus, not only is there no evidence that clinical partners made threats or promises of benefits when engaged in prounion ac- tivities, there also is no evidence that other unit nurses would reasonably believe that clinical partners had any direct ability to punish or reward them for their atti- tude toward the Petitioner. There remains for our consideration only the Em- ployer’s objection alleging the coercive presence of clinical partners in the polling places during the elec- tion. The Employer has not alleged or submitted evi- dence identifying any specific conduct by clinical part- ners in these areas that interfered with the election process. It therefore rests on the contention that the mere presence of supervisors had a coercive effect. Having specifically directed that clinical partners be permitted to vote subject to challenge in the election, we certainly cannot find that their presence at the polls during the election is prima facie evidence of objec- tionable conduct. How else were they supposed to cast their challenged ballots? Moreover, we reiterate that clinical partners have no supervisory authority over their nursing peers in the bargaining unit. Unit nurses observing and being observed by clinical partners at the polls would not reasonably tend to be coerced in their electoral choice by the presence of coworkers who had no control over them and were also there to vote. Based on the foregoing, we find that the Employer has failed to prove its objection allegations or to present prima facie evidence that any substantial and material issues of fact exist that would warrant a hear- ing. Accordingly, without resolving the issue of clini- cal partners’ supervisory status, we adopt the Acting Regional Director’s recommendation to overrule the Employer’s objections and to certify the Petitioner’s representative status.7 CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for the California Nurses Association, and that it is the exclusive collective-bargaining rep- resentative of the employees in the following appro- priate unit: VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00219 Fmt 0610 Sfmt 0610 D:\NLRB\324.026 APPS10 PsN: APPS10 220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All Registered Nurses employed by the Employer, including all Registered Nurses employed at Sut- ter VNA Roseville Home Health and Sutter Hos- pice Roseville, but excluding all other employees, guards and supervisors as defined in the Act. VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00220 Fmt 0610 Sfmt 0610 D:\NLRB\324.026 APPS10 PsN: APPS10