Silver Lane Pavillion

SILVER LANE PAVILLION Applegate Lane, Inc. d/b/a Silver Lane Pavillion Convalescent Home and Local 6, International Federation of Health Professionals, a/w Interna- tional Longshoremen's Association, AFL-CIO, Petitioner. Case 1-RC- 14721 June 9, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and approved by the Acting Regional Director for Region I on October 13, 1976, an election by secret ballot was conducted on November 4, 1976, among the employees in the stipulated unit. At the conclu- sion of the election, the parties were furnished a tally of ballots which showed that, of approximately 78 eligible voters, 76 cast ballots, of which 31 were for and 35 were against the Petitioner. There was one void ballot and there were nine challenged ballots. The challenged ballots are sufficient in number to affect the results of the election. Thereafter, Petition- er timely filed objections to conduct affecting the results of the election. Pursuant to Section 102.69 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Acting Regional Director conducted an investigation and, on December 23, 1976, issued and duly served on the parties his Report on Objections and Challenged Ballots. In his report, the Acting Regional Director recommended, inter alia, that a portion of Objection 4 be sustained and the election held herein be set aside. Alternatively, the Acting Regional Director recommended that, should the Board not adopt his recommendation with respect to Objection 4, the issues raised in Objection 5 be consolidated for hearing with certain pending related unfair labor practice cases. Thereafter, the Employer filed timely exceptions and supporting brief limited to the Acting Regional Director's recommendations with respect to Objections 4 and 5.1 In the absence of exceptions thereto, we adopt, proforma, the Acting Regional Director's recommendations that the challenge to the ballot of Maureen Donahue be sustained; that the challenges to the ballots of Laurie Bergeron, Laura Leonard, and Brenda Leonard be overruled and that these ballots be opened and counted immediately; and, in the event the remaining challenges to the ballots of Susan Priest, Anne Martin, Julia Kotulak, Deborah Evans, and Willie Mae Wilcox are then determinative, that these challenges be resolved after the hearing before an Administrative Law Judge in certain pending related unfair labor practice cases. Additionally, in the absence of exceptions thereto, we adopt, pro forma, the Acting Regional Director's recommendations that Objections I, 2, and 3 be overruled in their entirety and that Objection 4 be overruled in part. In Objection 5, the Petitioner alleged that "By the above and other 230 NLRB No. 16 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this case, the Board finds: I. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of the Act: All full-time and regular part-time service and maintenance employees employed by the Em- ployer at its 51 Applegate Lane, East Hartford, Connecticut location, including housekeeping employees, dietary and kitchen employees, laun- dry employees, nurses aides, physical therapist aides, recreation directors, but excluding licensed practical nurses, registered nurses, professional employees, office clerical employees, guards, Administrator, Director of Nurses, Assistant Director of Nurses, Dietician and all other supervisors as defined in the Act. 5. The Board has considered the Acting Regional Director's report, the Employer's exceptions and brief, and the entire record in this case and hereby adopts the Acting Regional Director's findings and recommendations only to the extent consistent herewith. Objection 4 alleged that the Employer distributed statements to its employees which contained material misrepresentations of fact. The evidence with respect to this objection is as follows. On October 12, 1976, the Petitioner filed an unfair labor practice charge, alleging that the Employer had removed employee Willie Mae Wilcox from the work schedule on or intimidatory and coercive acts the Employer made impossible any free choice in the election." During the investigation of the objections, the Petitioner provided evidence that the Employer promised wage increases to its employees during the critical period. The Acting Regional Director, as noted above, recommended that, should the Board not adopt his recommen- dations with respect to Objection 4, the issues raised by Objection 5 be consolidated for hearing with certain pending related unfair labor practice cases. The Employer has excepted to the Acting Regional Director's consideration of conduct which was not specifically alleged in the objections. We find no merit in this exception. See, e.g., Thomas Products Co., Division of Thomas Industries, Inc., 169 NLRB 706 (1968), and cases cited therein. 73 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about September 17, 1976, because of her union activities. During the investigation of the charge, the Employer took the position that Wilcox had not been terminated and indicated a willingness to put her back on the schedule. Thereafter, on October 18, 1976, the Board agent investigating the charge sent Wilcox a letter in which he expressed the hope that the charge could be resolved and presented the Employer's position that Wilcox had not been terminated. The letter further stated what action the Employer required Wilcox to take in order to return to work. A copy of this letter was sent to the Employer. Approximately I week before the election, the Employer distributed a campaign leaflet to its employees which contained, among other things, a letter from its administrator, Marie Bergeron, which in part discussed Wilcox and the unfair labor practice charge concerning her. The pertinent por- tion of that letter reads: Willie Mae Wilcox was never fired. She claimed she had hurt her foot at home and was going to the doctor. She was told to bring in a doctor's certificate when she was ready to return to work. The union unjustly brought charges against me. The investigator of these charges realized this and sent Willie a letter (copy posted in dining room). [Emphasis in original.] As indicated in this letter, a copy of the Board agent's letter in fact was posted in the employees' dining room. Subsequent to the election, on Novem- ber 16, 1976, the Acting Regional Director issued a complaint which alleged, inter alia, that Wilcox had been unlawfully discharged. In recommending that Objection 4 be sustained, the Acting Regional Director noted that Board law does not prohibit, during an election campaign, statements by the parties of their positions with respect to unfair labor practice charges and found the statement in Bergeron's letter that she had been unjustly charged, standing alone, was clearly permis- sible. He further found, however, that, in reading Bergeron's letter, the employees might conclude that the Board agent had made remarks to the effect that the Employer had been unjustly charged and that since such remarks, if they had been made, would have been made in discussions to which neither the Petitioner nor the employees were privy, there was no likely avenue by which the employees could have checked the veracity of Bergeron's statements. He therefore concluded that the Employer misrepresent- ed the position of the Board and one of its agents and substantially mischaracterized a Board document concerning a material campaign issue and, relying on Dubie-Clark Co., Incorporatead 209 NLRB 217 (1974), found such conduct objectionable. We disagree. In Dubie-Clark the petitioner mischaracterized an informal settlement agreement as a Board finding that the employer had violated the employees' rights under the law. As evidence, the petitioner referred Dubie-Clark's employees to an official Board notice which had been posted pursuant to the settlement. In fact, the settlement agreement included a statement that the employer did not admit any wrongdoing. The Board set aside the election because of the substantial mischaracterization of a Board document for partisan purposes. In contrast, the instant case does not involve a formal Board document, but rather merely involves a letter signed solely by a Board agent which set forth the Employer's position in the hope of resolving a charge during the investigatory stage and which carried no legal effect whatsoever. The Employer did not patently mischaracterize Board action or its official documents, and its statements are recogniz- able as its own opinion; an opinion the employees had an opportunity to evaluate by reading the letter itself, which had been posted in the dining room and called to their attention. Therefore, in light of the particular circumstances of this case, we find that the statements contained in Bergeron's letter are insufficient to warrant the setting aside of the election. Accordingly, we hereby overrule that portion of Objection 4. ORDER It is hereby ordered that Case l-RC-14721 be, and it hereby is, remanded to the Regional Director for Region I for the purpose of consolidating Petitioner's Objection 5 for hearing before an Administrative Law Judge with the issues involved in Cases I-CA- 12228, 1-CA-12229, and I-CA-12308. IT IS FURTHER ORDERED that the Regional Director for Region I immediately open and count the ballots of Laurie Bergeron, Laura Leonard, and Brenda Leonard and issue a revised tally of ballots. If the remaining challenges to the ballots of Susan Priest, Anne Martin, Julia Kotulak, Deborah Evans, and Willie Mae Wilcox are then determinative of the results of the election, the resolution of such challenges shall be held in abeyance pending the disposition of the issues in Cases 1-CA-12228, I-CA-12229, and 1-CA-12308. 74