Mercy-Memorial Hospital

360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mercy-Memorial Hospital and Nolan Smallwood, Petitioner and Hospital Employees' Division of Local 79, Service Employees International Union, AFL-CIO. Case 7-RD-1977 21 April 1986 DECISION AND CERTIFICATION OF REPRESENTATIVE 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 9 March 1983 and the hearing offi- cer's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 119 for and 95 against the Petitioner, with 7 chal- lenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and briefs and the Employer's Motion for Summary Judgment and the Petitioner's answer in opposition to the motion, has adopted the Regional Director's findings and recommenda- tions,' and finds that a certification of representa- tive should be issued. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Hospital Employees' Divi- sion of Local 79, Service Employees International Union, AFL-CIO, and that it is the exclusive col- lective-bargaining representative of the employees in the following appropriate unit: ' In the absence of exceptions thereto, we adopt, pro forma, the hear- ing officer's recommendation to overrule the Employer's Objection I In adopting the hearing officer's recommendation that the Employer's Objection 3 be overruled, we emphasize that the bargaining unit in which the Union faced a decertification election had recently been expanded and that most of the employees in the expanded unit were not union members. The Union's 16 February 1983 letter to its membership, in our view, was clearly a campaign document aimed at bolstering the Union's support We also find that the Union's asking its members to advise of coworkers' promanagement activities is analogous to an employer's asking its supervisors during an election campaign to let management know what they hear (without, of course, engaging in surveillance or in- terrogation) concerning employees' union sentiments The Union's re- quest here does not contain any threat or hint of unlawful means Ac- cordingly, we conclude that the Union was entitled to utilize its member- ship lawfully to obtain information helpful to its campaign The Employ- er's Motion for Summary Judgment is therefore denied We disagree with the dissent's reliance on cases involving employer re- quests that employees report on the union activities of fellow employees We also disagree with the dissent's claim that we are following a "double standard " The dissent overlooks the fact an "employer occupies a far different position with regard to the coercive impact of its action upon employees than does a Union. The Board, recognizing this difference, has frequently applied different standards to the actions of the employer than it has to similar actions of unions " Louis-Allis Co v NLRB, 463 F 2d 512, 517 (7th Cir 1972) All full and regular part-time dietary aides, di- etary clerks, cook/bakers, housekeeping aides, porters, machine operators, nurses aides, order- lies, ward clerks, pharmacy aides, x-ray aides, laboratory aides, central supply aides, physical therapy aides, general maintenance and mainte- nance mechanics, employed by Employer at its Mercy Unit located at 718 N. Macomb Street, Monroe, Michigan; but excluding all Regis- tered Nurses, LPNs, GPNs, office clerical em- ployees, professional employees, technical em- ployees, supervisors and guards as defined in the Act. CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, I would find merit in the Employer's Objection 3 and would order that the election be set aside and a new election con- ducted . In my view, a letter exhorting employees to engage in surveillance of their coworkers cannot be dismissed as a "campaign document ," nor can it be successfully analogized to an employer 's lawful request-uncommunicated to its employees-of its supervisors to apprise management of any informa- tion they receive concerning employees' union sen- timents. The Union's 16 February 1983 letter to its mem- bership states, in pertinent part: As the elction [sic] date grows nearer , it is our opinion that the Hospital management's effort to confuse and deceive your co-workers will increase. We urge that any questions you have be directed to one of the contract negotiating committee members or your Union Business Representative . . . . If any of your co-workers are assisting the Hospital management, we urge you to notify our office immediately. [Emphasis added.] Although the Union allegedly made this request because it sought assistance in determining whether the decertification petition was tainted by supervi- sory participation, the letter which the employees received did not convey this limited message, as the hearing officer herself found . Rather, in the context of the decertification election conducted here, the union letter constituted a veiled threat to discipline those members disloyal to its interests. Furthermore, the urgency of this matter, as set out in the letter, could not fail to underscore in the minds of union members that they risked adverse consequences by failing to support the Union. Al- though the letter does not indicate what discipline would be imposed on dissident members, article XVI of its constitution and bylaws , as revised and amended in 1980, grants the Union the authority to 279 NLRB No. 56 MERCY-MEMORIAL HOSPITAL expel or fine its members for "gross disloyalty or conduct unbecoming a member." The threat of such retaliation against dissident union members is just as serious as a threat from an employer to prounion employees . In either instance , such con- duct tends to interfere with employees' free exer- cise of their Section 7 rights. My colleagues, by their contrary holding , create a double standard: 361 one that finds such conduct unlawful for employ- ees,' but not for unions. In the present case, it is clear that this conduct could have affected the outcome of the election since at least 40 percent of the eligible voters were union members. For these reasons, I conclude that the interest of employee free choice will best be served by the direction of a second election. I See, e g, Headquarters Plaza Hotel, 276 NLRB 925 (1985), J H Block & Co, 247 NLRB 262 (1980).