Heartland Of Keyser

168 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD Health Care and Retirement Corporation of Amer- ica, d/b/a Heartland of Keyser and United Food and Commercial Workers Union, Local 27, AFL-CIO, Petitioner. Case 5-RC-12167. 16 April 1985 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The National Labor Relations Board has consid- ered objections to an election held on 12 April 1984 and the hearing officer's report recommend- ing disposition of them. The election was conduct- ed pursuant to a Stipulated Election Agreement. The tally of ballots shows 34 for and 37 against the Petitioner, with no challenged ballots. The Board has reviewed the record in light of the exceptions and briefs, and has adopted the hearing officer's findings and recommendations,1 only to the extent consistent with this decision. In his report the hearing officer recommended that the Petitioner's Objection 1(b) concerning the Employer's disparate enforcement of its bulletin board posting policies be sustained and that a new election be held. The Employer excepts, contend- ing that during the critical period it maintained uni- form policies regarding the bulletin board and that the Petitioner had ample opportunity to communi- cate with the employees. We 'find merit in this ex- ception. On 29 December 1983 the Employer acquired the facility involved herein. In January2 the Peti- tioner began an organizing campaign among the Employer's employees, and the Petitioner filed a representation petition on 21 February. Under the previous employer the bulletin board was used as a general purpose bulletin board with all types of no- tices posted by the employees. On 7 February the Employer instituted a no-posting policy, prohibit- ing any and all employee postings, and instructed the supervisors to remove all literature, both union and nonunion, from the bulletin board.3 On 23 March the Employer modified its policy to allow all literature to remain posted on the bulletin board a "reasonable- amount of time."4 Between 23 March and 12 April, the date of the election, union literature was posted on the bulletin board and re- i In the absence of exceptions we adopt, pro forma, the hearing offi- cer's recommendation to overrule Objections 1(a) and (c) and 6 2 Unless otherwise stated all dates are in 1984 3 The Employer did not remove from the bulletin board the personal and other nonunion notices which had been posted by employees prior to 7 February - 4 The Employer interpreted a "reasonable time" as 3 or 4 days mained posted in accord with the Employer's policy. _ Contrary to the hearing officer, we find that the Employer's conduct with regard to the bulletin board did not affect the results of the election. It is undisputed that both the -"no-posting" policy and the "reasonable time" policy were valid rules promulgated by the Employer. Further, under both policies the Employer treated antiunion literature posted on the bulletin board no differently from prounion literature. In addition, 'during the 3 .weeks before the election, the Employer allowed all union literature to remain on the bulletin board for sever- al days, thereby insuring that employees had an op- portunity to read the literature. Under these circumstances, the Employer' s fail- ure to apply its new rules evenhandedly by not re- moving from the bulletin board notices posted prior to 7 February which did not' relate to the election campaign does not warrant setting aside the election. In the absence of any evidence that the Petitioner was not able to adequately communi- cate with the employees or that the Employer en- gaged in other objectionable conduct, we shall cer- tify the results. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority -of the valid bal- lots have not been cast for United Food and Com- mercial Workers Union, Local 27, AFL-CIO, and that it is not the exclusive representative of these bargaining unit employees. MEMBER DENNIS, dissenting. Contrary to the majority, I agree with the hear- ing officer that the election should be set aside based on Petitioner's Objection 1(b), alleging dis- criminatory bulletin board posting practices. The petition here was filed 21 February 1984, and the election held 12 April 1984. The Employer acquired the facility from the previous owner 29 December 1983. The predecessor had permitted employees to post a variety of personal notices on the bulletin board in the breakroom. The practice continued until 7 February, when the Employer in- troduced a rule prohibiting all employee postings, and instructed supervisors to remove all literature from the board. Supervisors, however, did not remove notices (e.g., Tupperware, Avon solicita- tions) other than union notices. On 23 March, the Employer altered its policy to permit all literature to remain posted a "reasonable time," meaning 3 or 4 days, according to the Employer. The Employer removed prounion notices from the bulletin board in accord with the policy in 275 NLRB No. 26 HEARTLAND OF KEYSER 169 effect before or after 23 March, but permitted non- union notices to remain posted throughout. This constituted objectionable disparate enforcement of its rules, even though antiunion , as opposed to non- union, notices were similarly treated. See Stanley Furniture Co., 244 NLRB 589 fn. 1, par. 2 (1979) ("Disparity of treatment between prounion and other employee notices violates the Act, and we need not consider whether disparity between em- ployee prounion notices and Respondent's antiun- ion ones also is a violation."); Vincent's Steak House, 216 NLRB 647, 647-648 (1975) ("Although we do not hold that Respondent could not uni- formly enforce a rule prohibiting the use of its bul- letin boards by employees for all purposes, we here find that Respondent, by implementing the rule to prohibit the posting of material relating to and in the course of concerted activity of its employees, while having previously allowed the posting of other miscellaneous matters by the employees, dis- parately denied employees access to its bulletin boards for their concerted activities in violation of Section 8(a)(1) of the Act.").