Englewood Hospital

806 318 NLRB No. 99 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 By unpublished decision dated September 30, 1993, the Board adopted the Acting Regional Director’s decision remanding for fur- ther hearing Objections 3, 6, 9, and additional objectionable conduct discovered in the Acting Regional Director’s investigation, and over- ruling Objections 7, 10, and 11. The Petitioner withdrew Objections 1, 2, 4, 5, 8, and 12. Prior to the close of the hearing, the Petitioner withdrew Objection 6 and the objection concerning additional objectionable conduct. In the absence of exceptions, we adopt, pro forma, the hearing officer’s recommendation to overrule Objection 3. 2 The election in the third unit was conducted in Case 22–RC– 10656, and it is not involved herein. 3 The Employer has requested oral argument. We deny this request because the record and the briefs adequately present the issues and the parties’ positions. Englewood Hospital and Hospital Professionals and Allied Employees of New Jersey, AFT/AFL– CIO, Petitioner. Cases 22–RC–10655 and 22– RC–10665 August 25, 1995 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS STEPHENS, BROWNING, AND TRUESDALE The National Labor Relations Board, by a three- member panel, has considered objections1 to elections held in three separate units on December 17 and 19, 1992,2 and the hearing officer’s report recommending disposition of them. The elections were conducted pur- suant to a Decision and Direction of Election. The re- vised tally of ballots in the unit of nonprofessional em- ployees was 286 for and 301 against the Petitioner, with 10 challenged ballots, an insufficient number to affect the results. The tally of ballots in the unit of technical employees was 43 for and 86 against the Pe- titioner, with 12 challenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and briefs3 and adopts the hearing officer’s findings and recommendations only to the extent con- sistent with this decision. The Petitioner contends in Objection 9 that the Em- ployer interfered with the election by creating literature or leaflets which contained negative and threatening ra- cial or ethnic references, including the reproduction of a Nazi swastika, and by discussing that literature in captive audience meetings with employees and assert- ing that the literature had been produced by the Peti- tioner and sent to the Employer’s management offi- cials. Although the hearing officer did not find that the Employer’s management officials either created the document at issue or attributed its creation to the Union, he, nevertheless, found merit in the Petitioner’s Objection 9 and recommended that the election be set aside. We disagree. According to the credited testimony, Daniel Kane, the Employer’s president and chief executive officer, held several meetings with employees during the criti- cal period. Kane discussed his view of the drawbacks and potential liabilities if the employees selected the Petitioner as their bargaining representative. After dis- cussing the subjects of collective bargaining, strikes, and arbitration, Kane mentioned that employees had complained to him about harassment by other employ- ees during the campaign. Kane stated that he also had been harassed, and he held up a letter and said, ‘‘[T]his is what I’ve received and I’m angry over it.’’ Kane then circulated among the employees an anony- mous letter that he said he had received. The letter reads: You will get it sooner or later. Its [sic] only a matter of time you Jew mother fucker. We know where you live. Tenafly. Tenafly. (Kane apparently resides in Tenafly, New Jersey.) The letter also contained a reproduction of a swastika and a photograph of David Duke. Kane told the employees that he was not saying, nor was there any proof, that the Petitioner was responsible for the letter. Instead, Kane said that the ‘‘environment that created animosity between employees was what might generate’’ such a letter. The hearing officer found that Kane’s presentation of the letter during the critical period in the context of antiunion meetings was an attempt to inflame and in- cite religious or racial tensions during the campaign. The hearing officer concluded that the introduction of the document during Kane’s campaign speeches re- quired more than the weak disclaimer expressed by Kane, i.e., ‘‘I am not saying that this letter was sent by the Union.’’ The hearing officer reasoned that the employees were, at the least, provoked to contemplate the Petitioner’s responsibility for and involvement in the preparation and mailing of the letter. He further found that Kane’s presentation of the letter could not be characterized as merely casual remarks, but was a deliberate attempt by the Employer in numerous for- mal campaign meetings to overstress and exacerbate racial and/or religious feelings by irrelevant, inflam- matory appeals during the critical period. Applying the Board’s policy set forth in Sewell Mfg. Co., 138 NLRB 66 (1962), the hearing officer found that Kane’s con- duct interfered with the employees’ free choice in the election, and he recommended that the election should be set aside on the basis of Objection 9. In Sewell, supra, the Board held that it would set an election aside when a party embarks on a campaign which seeks to overstress and exacerbate racial feelings by irrelevant, inflammatory appeals to racial prejudice. The Board, however, also made clear that not every ra- cial reference made during an election campaign is ob- 807 ENGLEWOOD HOSPITAL 4 Bancroft Mfg. Co., 210 NLRB 1007, 1008 (1974) (quoting from Sewell). 5 Benjamin Coal Co., 294 NLRB 572, 573 (1989). 6 See Coca-Cola Bottling Co., 232 NLRB 717 (1977). Compare YKK (U.S.A.), Inc., 269 NLRB 82 (1984). 7 See also Catherine’s Inc., 316 NLRB 186 (1995); Brightview Care Center, 292 NLRB 352 (1989). 8 Our dissenting colleague agrees with us that Kane did not en- dorse or appeal to racial prejudice. Under Sewell, that should be the end of the inquiry. Instead, our dissenting colleague would find the Sewell violation on the ground that Kane’s denunciation of the hate- ful ethnic material was a ‘‘thinly veiled attempt’’ to equate the Union’s solicitation of employees with harrassment. In our view, the facts here do not warrant such an inference. Further, our dissenting colleague’s view that Kane’s reference to an ‘‘environment that cre- ated animosity’’ impermissibly injected racial matters into the cam- paign within the meaning of Sewell, has no basis in Board or court precedent. jectionable. The Board in Sewell distinguished objec- tionable conduct from isolated, casual, prejudicial re- marks, and emphasized that it did not intend to con- demn relevant campaign statements merely because they have racial overtones. Thus, in applying Sewell, the question to be an- swered is whether the statements at issue appeal to ra- cial or religious prejudice against a particular group and are inflamatory and irrelevant. Applying that standard here, we cannot agree with the hearing offi- cer’s finding that Kane’s conduct was objectionable. Simply put, we find that Kane’s remarks ‘‘[did] not deliberately seek to overstress and exacerbate racial feelings by irrelevant, inflammatory appeals.’’ Id. at 71–72. Numerous decisions since Sewell support our deci- sion here. In these cases the Board has consistently re- iterated that ‘‘the rule in Sewell is applicable only in those circumstances where it is determined that the ‘appeals or arguments can have no purpose except to inflame the racial feelings of voters in the election.’’’4 The Board has also emphasized that the rule of Sewell ‘‘concerns prejudiced campaign propaganda issued by a party to the election, not expressions of employee bias independent of the party’s own actions.’’5 As the Board explained in Baltimore Luggage Co., 162 NLRB 1230 (1967): Consequently, in Sewell, we did not lay down the rule that parties would be forbidden to discuss race in representation elections. Rather, we set aside an election because the campaign arguments were inflammatory in character, setting race against race—an appeal to animosity rather than to consideration of economic and social condi- tions and circumstances and of possible actions to deal with them. [162 NLRB at 1233.] In our view, Kane’s conduct here did not rise to the level of a sustained appeal to racial prejudice of the type condemned in Sewell and its progeny.6 Kane’s re- marks did not appeal to feelings of racial and religious bias, nor did they seek to pit race against race. Rather, they denounced such feelings. Although Kane repeated his discussion of the letter in several meetings, it cer- tainly was not a centerpiece of the Employer’s cam- paign. Thus, unlike in Sewell, the record does not show that race was a significant aspect of the cam- paign in this case. In addition, as noted above, there is no evidence that the Employer created the letter in question, and Kane did not attribute it to the Petitioner. We find the Board’s decision in Beatrice Grocery Products, 287 NLRB 302 (1987), to be particularly in- structive and applicable here. In Beatrice, the Board found that a union representative’s statement involving an alleged racial appeal to employees did not warrant setting the election aside. In so finding, the Board stat- ed that ‘‘[b]ecause the statement represented an effort to denounce racial prejudice in another (the Employer), rather than to incite prejudice against a particular racial or religious group. . . it does not constitute the kind of gratuitous appeal to racial prejudice that Sewell brands as objectionable conduct.’’ 287 NLRB at 303.7 Similarly, Kane’s remarks did not attack a particular racial, ethnic, or religious group, nor did they con- stitute a bigoted attack on any individual. In these cir- cumstances, we fail to discern how Kane’s comments could have reasonably tended to interfere with the election by destroying the atmosphere necessary to the exercise of free choice.8 Accordingly, we certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid ballots have not been cast for Hospital Professionals and Al- lied Employees of New Jersey, AFT/AFL–CIO and that it is not the exclusive representative of the em- ployees in the bargaining units. MEMBER BROWNING, dissenting. Contrary to my colleagues, I would adopt the hear- ing officer’s recommendation, and set the election aside because the Employer improperly injected racial prejudice into the campaign. During preelection meetings with employees, the Employer’s president and chief executive officer, Dan- iel Kane, expressed his anger about an anonymous ‘‘hate’’ letter that he said he had received. This letter, which Kane circulated among the employees, called Kane a ‘‘Jew mother fucker’’ and threatened that he would ‘‘get it sooner or later’’ and that the letter’s au- thors ‘‘know where you live.’’ The letter also con- tained a reproduction of a swastika and a photograph of David Duke. Kane told the employees that he was not claiming that the Petitioner was responsible for the letter, but rather that the ‘‘environment that created an- imosity between employees was what might generate’’ such a letter. 808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 269 NLRB at 84. 2 Glazers Wholesale Drug Co., 209 NLRB 1152 (1974). In my view, Kane engaged in objectionable conduct under Sewell Mfg. Co., 138 NLRB 66 (1962), by ex- pressly linking the hateful anti-Semitic comments in the letter he circulated to the Petitioner’s election cam- paign. In citing to an ‘‘environment that created ani- mosity between employees,’’ Kane clearly was refer- ring to the atmosphere that had resulted from the em- ployees’ organizational efforts and the Petitioner’s presence at the Employer’s facility. Thus, employee Melvina Harris credibly testified that Kane advised the employees that ‘‘these are the type of threats and things you get when you’re in like, you know, trying to fight for a union or whatever.’’ Kane thus effec- tively claimed that the mere fact that some employees wanted a union created an atmosphere that could incite racial prejudice in the ugly manner that was manifested in the letter he circulated among the employees. In Sewell, the Board held that a party’s injection into a campaign of irrelevant, inflammatory racial mat- ters will constitute objectionable conduct. The Board stated: What we have said indicates our belief that ap- peals to racial prejudice on matters unrelated to the election issues or to the union’s activities are not mere ‘‘prattle’’ or puffing. They have no place in Board electoral campaigns. They inject an element which is destructive of the very pur- pose of an election. They create conditions which make impossible a sober, informed exercise of the franchise. The Board does not intend to tolerate as ‘‘electoral propaganda’’ appeals or arguments which can have no purpose except to inflame the racial feelings of voters in the election. [138 NLRB at 71.] Although strictly speaking, Kane was not himself endorsing or appealing to racial prejudice, he did raise the spectre of racial and ethnic hatred as an element of the election campaign. Further, Kane’s presentation of the letter to the assembled employees and his com- ments about it were not germane to any legitimate issue involved in the election. Kane’s distribution of the letter was made in the context of his comments about alleged harassment of employees. Kane’s denun- ciation of ‘‘harassment,’’ however, was a thinly veiled attempt to equate legitimate solicitation of employees during the Petitioner’s campaign with ‘‘harassment.’’ By linking such solicitation and the ‘‘environment’’ created by the organizational campaign to the hateful ethnic material he was quoting from, Kane sought to discredit the Petitioner and its campaign in a manner which impermissibly injected racial and religious prej- udice into the campaign. In YKK (U.S.A.), Inc., 269 NLRB 82 (1984), the Board found objectionable under Sewell a union’s in- flammatory and prejudicial references to the employ- er’s Japanese ownership and management. Just as the Board in YKK, supra, found that there was ‘‘no con- ceivable way that a reference to beating ‘Japs’ at Pearl Harbor could be relevant to a legitimate campaign issue,’’1 I find that Kane’s remarks linking the hate letter he had received to the Petitioner’s campaign was unrelated to any legitimate issue facing the employees during the campaign. Nor may Kane’s conduct properly be dismissed as isolated or insignificant. As the hearing officer noted, Kane, the president of the Employer, disseminated the letter to large groups of employees at a number of meetings called to communicate Kane’s antiunion views. I agree with the hearing officer that, at a mini- mum, Kane suggested to the employees that the Peti- tioner was involved in the preparation and mailing of the letter. The Board has held that a statement to the effect that the other party in the election would engage in racial discrimination ‘‘may well be grounds for set- ting an election aside’’ under Sewell.2 I conclude that this is just such a case, because the Employer has sug- gested that the Union, or at least the ‘‘atmosphere’’ created when the employees exercised their right to or- ganize and choose union representation, created and spread scurrilous racial and religious threats and ap- peals. Accordingly, in the circumstances here, I find that Kane’s circulation of the letter and his accompanying remarks made a fair election impossible, and I would direct a new election.