Leisure Lodge

LEISURE LODGE Beverly Enterprises d/b/a Leisure Lodge and United Food and Commercial Workers Union Local 1583, Petitioner. Case 26-RC-6692 17 April 1986 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN The National Labor Relations Board, by a three- member panel, has considered objections to an election held 12 September 1984 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 15 for and 20 against the Petition, with 2 chal- lenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and briefs, has adopted the hearing officer's findings and recommendations,' and finds that the election must be set aside and a new elec- tion held. In agreement with the hearing officer, we find that the Employer's announcement of a wage in- crease was objectionable. The wage increase was announced a week before the election at an antiun- ion meeting. Further, contrary to our dissenting colleague, we are not persuaded by the Employer's proferred justifications for the timing of that an- nouncement. When the employees were told some 5-6 months previously that a wage increase might be granted about that time, they were told that any such wage increase would depend on an increase in the state Medicaid reimbursement rate. The wage increase was precipitously announced, however, a full week before the Employer received official no- tification that such a Medicaid increase was forth- coming, almost a month before it became effective, and almost 2 months before the Employer actually began receiving it. While the Employer claims that it had received prior unofficial notification that a Medicaid increase had received the Governor's ap- proval, it also claims that it subsequently did a 2- week-long cost analysis before announcing the wage increase. Yet the Employer presented no documentary evidence of such an analysis. We con- clude that the Employer rushed the announcement of the wage increase forward in time to influence the election results. Unlike our dissenting colleague, we also are un- persuaded that the wage increase was unobjection- i In the absence of exceptions thereto, we adopt pro forma the heating officer's recommendations that the Petitioner's Objections 1, 4, 5, 6, 8, and 10 be overruled 327 able simply because it was announced statewide and not just in the voting unit. The case which our colleague cites for this proposition, Stanley Smith Security, 270 NLRB 225 (1984), is distinguishable. In that case, there was no evidence that the em- ployer's regional manager, who made the decision to grant the preelection benefit, was aware of the pending election in the voting unit. Additionally, because of blocking charges in that case, the date of the election was uncertain at the time of the de- cision. Here, in contrast, the Employer's vice presi- dent of human resources Mike Hayden testified that he and other members of the executive staff "made a very conscious decision" to implement the wage increase at the Camden facility notwithstand- ing the pending election. Further, there were no blocking charges here or other similar circum- stances then causing uncertainty about the election date. Cf. Northern Telecom, Inc., 233 NLRB 1104 (1977) (no knowledge that a rerun election was going to be called). [Direction of Second Election omitted from pub- lication.] CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, I would reverse the hearing officer, overrule the Petitioner's Objection, and certify the results of the election. The Employer operates 47 nursing homes in the State of Arkansas, including the Camden facility in- volved in this proceeding. As of the date of the election the Petitioner represented employees at seven of these facilities. The remaining 40 facilities were nonunion. In April 1984, prior to the election campaign,' the Employer announced that it was "expand[ing]" the wage scale at its 40 nonunion facilities to pro- vide, for the first time, a 5- and 10-cent-per-hour wage increase to employees with 4 and 5 or more years of service, respectively. At the Camden facil- ity these increases were announced both in posted notices and orally by Administrator Bettye Wallace at one or more staff meetings.2 Wallace also ad- vised the employees at that time that the Employer intended to implement another wage increase sometime in the fall of that year.3 Wallace told the ' The election petition was filed on 23 July 1984 2 That Wallace orally announced the April wage increase is established both by Wallace's testimony and by the testimony of employee Carolyn Gaskin, a witness for the Petitioner 2 The record is unclear about precisely when the employees were told that they could expect another increase Employee Sallie Elliot, a witness for the Petitioner, testified that Administrator Wallace said "that the Company was establishing something where we would get a raise like-I don't remember the months It would be April, September-something like that January-I don't know the month exactly " Employee Carolyn Gaskin, also a witness for the Petitioner, testified that Wallace said that Continued 279 NLRB No. 49 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees that this would depend upon whether the State increased the reimbursement rate for Medicaid. At a subsequent 15 August 1984 meeting of the Arkansas Nursing Home Association (ANHA), the Employer learned that the Governor had agreed to a 4-percent increase in the Medicaid reimbursement rate effective 1 October 1984.4 Based on this infor- mation, approximately 2 weeks later the Employer decided to implement, effective 3 September 1984, another 5-cent-per-hour wage increase at its non- union facilities for employees with 4 or more years of service. A memorandum announcing this in- crease was sent to each of the 40 nonunion facili- ties, including the Camden facility, on 5 September 1984.8 Vice President Hayden testified that the reason it was decided to implement and announce the increase at that time, rather than after the Med- icaid increase became effective 1 October, was that "we had told the employees we were going to look at it [a wage increase] as soon as we could" and "we don't like to be after the fact always." Administrator Wallace testified that she first heard about the wage increase on the morning of 5 September. At that time she discussed the possible ramifications of announcing the increase during the pendency of the election with Greg Robertson, the Employer's manager of organized activity. Wallace testified that she took the position that the increase should be announced that day because it was being announced at all of the other affected facilities that day. It was decided that Wallace would announce the increase at a meeting with employees presche- duled for that afternoon. The testimony was conflicting even among the Petitioner's own witnesses as to precisely what Wallace said to the employees at the afternoon meeting.6 It is undisputed, however, that Wallace the Company was going to try to give them a second increase "in an- other six months " Wallace herself testified that "`in the fall' was the way it was said." 4 Mike Hayden, the Employer's vice president of human resources, tes- tified that the president of the ANHA board announced the forthcoming 4-percent Medicaid increase at the 15 August meeting The hearing offi- cer did not discredit Hayden's testimony, nor do I find reason in the record to do so The hearing officer found, and the record shows, that the Employer also received written confirmation of the 4-percent in- crease from the ANHA executive director about 7 September 1984 and that the Arkansas Department of Human Services issued official notifica- tion of the 4-percent increase approximately I week later on 13 Septem- ber 1984 3 The memorandum was addressed to "All Arkansas Nurses' Aides and Housekeeping, Dietary, Laundry and Maintenance Employees " (Empha- sis added) 6 As part of its objection, the Petitioner charged that Wallace's alleged comments at the 5 September meeting , as well as Vice President Hay- den's comments at later preelection meetings , constituted independent grounds for setting aside the election The hearing officer overruled this part of the Petitioner's objection announced the wage increase at the outset of the meeting, after which Jeanette Pace, the food serv- ice supervisor, showed the employees a film enti- tled "Working Without A Union." Subsequently, Wallace also posted the Employer's 5 September memorandum announcing the increase on the bulle- tin board.7 On the foregoing facts, the hearing officer con- cluded that the Employer timed its announcement and implementation of the September wage in- crease for the objectionable purpose of influencing the outcome of the election. The hearing officer specifically cited the Employer's failure to present any documentary evidence that it was contemplat- ing a raise at such an early date or of a past prac- tice of raises in September or the fall. Further, the hearing office found Vice President Hayden's ex- planation for the timing of the raise to be "lacking in logic and unconvincing." I disagree. The Board has generally declined to find an objectionable motive upon evidence that the preelection benefit increase (1) was granted pursuant to a past practice, (2) was granted pursu- ant to a decision reached before the election peti- tion was filed, or (3) was implemented corpor- atewide in a normal business fashion.8 Here, al- though the hearing officer correctly found no evi- dence of the first,9 the Petitioner's own witnesses admitted to the second and uncontroverted docu- mentary and other evidence establishes the third. Thus, as outlined above, the Petitioner's witnesses, employees Elliot and Gaskin, both confirmed that Wallace had told them in April, before the election petition was filed, that a second wage increase would be granted in the fall. Wallace also told them that this increase would be contingent upon an increase in the Medicaid reimbursement rate and, in fact, the Employer was informed on 15 August, over 2 weeks before it implemented the wage increase, that the 4-percent Medicaid increase would be forthcoming. Finally, it is undisputed that the wage increase was implemented and announced statewide, at all 40 of the Employer's nonunion fa- 7 Although the record does not reveal the exact date Wallace posted the memorandum, employee Elliot testified that she saw it on the bulletin board on the day of the election 8 See, e g, Stanley Smith Security, 270 NLRB 225 (1984) As I stated in my separate opinion in Adams Super Market Corp, 274 NLRB 1334 (1985), in my view such factors are not even relevant until the objecting party has established a prima facie case that the Employer's conduct was intended to influence the election However, in this case I find that the objecting party established a prima facie case upon the evidence that the Employer first announced the September wage increase at an antiunion meeting held the week before the election Cf id 9 Significantly, however, the Employer never even contended that it had a past practice of similar September or fall wage increases Indeed, it admitted that it had instituted wage increases for employees with 4 or more years of service for the first time in April of that year Obviously, therefore, no past practice could yet have been documented LEISURE LODGE cilities, on 5 September. In light of these circum- stances, contrary to the hearing officer I perceive no reason to discredit Vice President Hayden's ex- planation concerning the timing of the wage in- crease.10 Nor am I persuaded by the Petitioner's conten- tion that the manner in which the Employer an- nounced the September wage increase betrays an objectionable motive. Although the Employer did not establish a past practice of orally announcing wage increases, it presented documentary evidence that it told its administrators to begin doing so in April, prior to the election campaign, when it an- nounced its new "expanded" wage scale. Indeed, as 10 In disagreeing with the hearing officer in this regard, I note that his refusal to credit Hayden's explanation was not based on Hayden's de- meanor, but on what he perceived as the explanation's inherent implausi- bility Accordingly, the hearing officer's credibility determinations are not necessarily entitled to deference See, e g, Red's Express, 268 NLRB 1154 (1984) 329 noted above, the Petitioner's own witnesses admit- ted that Wallace orally announced the April in- crease. Under all the circumstances, I also do not find it determinative that the September announce- ment was made at the outset of a meeting where an antiunion film was shown. It is uncontroverted that the meeting had been scheduled prior to 5 Septem- ber when according to Wallace she first learned of the wage increase, and the Petitioner does not allege that the film itself constituted unprotected speech or was otherwise objectionable. )1 Accordingly, for all the foregoing reasons, I con- clude that the September wage increase was not designed to influence the outcome of the election. I would therefore overrule the Petitioner's objection and certify the results of the election. 11 See J P Stevens & Co, 183 NLRB 25 (1970), enfd 461 F 2d 490 (4th Cir 1972)