Salem Village I, Inc., Salem Village Ii, Inc., And Salem Village Iii, Inc.

SALEM VILLAGE I 563 Salem Village I, Inc., Salem Village II, Inc., and Salem Village III, Inc. and Professional and Health Care Employees Division, Local 1453 Retail Clerks Union, chartered by United Food and Commercial Workers International Union, AFL-CIO-CLC. Case 13-CA-20575 April 21, 1988 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF THIRD ELECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 1, 1981, the National Labor Relations Board issued a Decision and Order 1 in the above- entitled proceeding in which it granted the General Counsel's Motion for Summary Judgment, found that the Respondent had violated Section 8(a)(5) and (1) of the National Labor Relations Act and ordered that the Respondent cease and desist there- from and take certain affirmative action to remedy such unfair labor practices. Thereafter, the Respondent petitioned the United States Court of Appeals for the Seventh Circuit for review of the Board's Order, and the Board cross- petitioned for enforcement. On April 9, 1982, in an unpublished order, the court denied enforcement and remanded the case to the Board to conduct a hearing on various issues raised by the Respond- ent's objections to the second election conducted in the underlying representation proceeding. On July 19, 1982, the Board, having accepted the remand, issued an Order Remanding Proceeding to Region- al Director for Hearing, in which it directed that a hearing be held before an administrative law judge "on the issues remanded by the Court," which the Board specified as follows: what, if any, impact statements made by em- ployees Linda Black and Mary Fronek had on the second election's outcome; what, if any, impact home visits to employees by Black and other Union supporters had on the second election's outcome; whether and to what extent Black and other Union supporters were perceived as agents of, or were authorized to act on behalf of, the Union; and to explore issues arising out of the "picture-taking inci- dent" involving Union agents Ray Pavnica, Greg Hamlet [sic], and Nancy Fisher. On August 4, 1982, the Respondent sent a letter to the Board objecting, inter alia, to the direction of a hearing in the unfair labor practice proceeding rather than in the representation proceeding and to the Board's limitation of issues to be considered at 1 256 NLRB 1015 (1981). 288 NLRB No. 59 the hearing. Treating the Respondent's letter as a motion for reconsideration of its Order Remanding Proceeding to Regional Director for Hearing, the Board on August 25, 1982, issued an Order2 deny- ing the Respondent's motion. In so doing, the Board stated that its Order remanding for a hearing in the unfair labor practice case was in accord with longstanding policy and "accurately delineated the issues which the court believed to require an evi- dentiary hearing." On October 25, 1982, Administrative Law Judge William A. Gershuny issued the attached decision. Thereafter, the Charging Party filed exceptions and a supporting brief, and the Respondent filed cross- exceptions, a supporting brief, and a brief in answer to the Charging Party's exceptions. The Board has considered the record and the at- tached decision in light of the exceptions and briefs and has decided to affirm the judge's rulings, fmd- ings, 3 and conclusions as modified and to adopt the recommended Order as modified. The Respondent contends, inter alia, that the Union's certification is invalid because the Union is responsible for statements made during the election campaign by employees Black, Fronek, and Swinke which are impermissible under NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973). In denying enforce- ment of the Board's bargaining order, the circuit court held that a hearing was necessary to deter- mine whether and to what extent the three employ- ees were perceived as agents or were authorized to act on behalf of the Union. The judge found that Black, Fronek, and Swinke had made statements to fellow employees during the campaign for the second election that initiation fees would be waived for employees who signed authorization cards prior to the election. He further found that these statements were attributable to the Union on the basis of actual and/or apparent au- thority and fell under the Savair prohibition, there- by warranting setting aside the election and the revocation of the Union's certification. The circuit court stated that a Savair "violation occurred here if Black and the others were acting on behalf of the Union." Accordingly, accepting the court's opinion as the law of the case, the narrow issue presented to the Board on remand is whether the three employees were acting as agents 2 263 NLRB 704. 3 The Charging Party has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an adinnustra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings. 564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for the Union when they made the impermissible Savair statements. Under the Board's decision in DavIan Engineer- ing, 283 NLRB 803 (1987), which issued after the judge's decision, we find that employees Black, Fronek, and Swinke are special agents of the Union for the limited purpose of assessing the impact of statements regarding initiation fee waivers they made in the course of soliciting authorization cards. In this regard, the Union vested Black with actual authority to obtain signed cards on its behalf when it made authorization cards available to her with the understanding that she would solicit other em- ployees to sign them. Further, the Union vested Fronek and Swinke with apparent authority by permitting and acquiescing in their soliciting on its behalf without indicating to the other employees that such solicitation was unauthorized. Thus, in accordance with the constraints set forth in the court's opinion, we find that the statements made by Black, Fronek, and Swinke warrant setting the election aside. 4 Contrary to the judge's recom- mended Order, however, we shall direct that a new election be held. ORDER The National Labor Relations Board orders that the certification issued in Case 13-RC-15219 is re- voked5 and that the complaint in Case 13-CA- 20575 is dismissed. [Direction of Third Election omitted from publi- cation.] 4 We affirm the judge's conclusion that, because the Savor statements require setting aside the second election, it was unnecessary to determine whether other allegedly objectionable conduct furnished independent grounds for setting aside the election. 5 In view of our disposition of the unfair labor practice case here, and our finding that a new election is warranted, we reinstate the representa- tion case, Case 13-RC-15219. Linda McCormick, Esq., for the General Counsel. R. Clay Bennett, Esq., William 1 Milani, Esq., and Robert K Sholl, Esq. (Seyfarth, Shaw, Fairweather & Gerald- son), of Chicago, Illinois, for the Respondent. Fern Steiner, Esq. (Karmel & Rosenfeld), of Chicago, Illi- nois, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM A. GERSHUNY, Administrative Law Judge. A hearing on the Employer's objections to conduct af- fecting a second election was held on September 8-9, 1982, in Chicago, Illinois, pursuant to Board Orders issued July 19 and August 25, 1982. No other issues, ju- risdictional or otherwise, are presented in the current posture of this case. The procedural history of this case is long: On August 10, 1979, Local 1453 filed a representation petition seek- ing to represent certain employees at Respondent's senior citizen residential nursing care facility in Joliet, Illinois. An election on October 5, 1979, which the Union lost by a narrow margin, was set aside by the Regional Director on the basis of union objections, and a second election was conducted on July 11, 1980, which the Union won. Employer's objections were considered and overruled by the Regional Director without an evidentiary hearing and the Board adopted his recommendations and certi- fied the Union as exclusive bargaining representative. On July 1, 1981, the Board in this proceeding granted sum- mary judgment, finding a refusal to bargain in violation of Section 8(a)(5). The court of appeals denied enforce- ment on April 9, 1982, directing that a full hearing be conducted on Respondent's objections. By Orders of July 19 and August 25, 1982, the Board directed that the hearing be conducted in the unfair labor practice pro- ceeding before an administrative law judge and designat- ed three objections to be heard. The court of appeals, by Order of September 7, 1982, rejected Respondent's appli- cation for an order directing (1) that the hearing be con- ducted by a hearing officer in the representation case and (2) that a fourth objection be heard as well. The court ordered only that the hearing was to be conducted pur- suant to its April 9 order. To ensure a complete record for subsequent review, I received evidence also as to Re- spondent's fourth objection. On the entire record, including my observation of wit- ness demeanor, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE MANCE RUMOR The evidence is undisputed that there was circulating throughout the bargaining unit for the entire 9-month period between the first and second elections a story, at- tributed to International Union Representative Hamblet, that employee Mance, a married woman, changed her al- legiance prior to the first election from the Union to the Company only because Hamblet had rejected her sexual advances. It also is undisputed that Mance had publically announced her change of allegiance shortly prior to the first election, not for that reason, but because of dissatis- faction with union campaign tactics; that she served as a company observer at both the first and second elections; and that her effectiveness as an antiunion spokesperson during the campaign for the second election was thereby destroyed. The rumor circulated widely through the bargaining unit: numerous employees heard and discussed it on the job; many witnessed an altercation between employees at a company meeting conducted 1 week before the second election, when employee Williams effectively stopped Mance from speaking by shouting, "I'll set your ass down. The only reason why you changed was Greg [Hamblet] wasn't liking you back"; and many heard that incident discussed at length on the floor of a union meet- ing shortly thereafter. SALEM VILLAGE I 565 The story as circulated, although differing in language, remained constant in meaning: "Greg wasn't liking you back"; "She's screwing around with this guy from the Union"; "Mance made passes at him"; and "Greg wouldn't go to bed with her." The story always was at- tributed by employees to Hamblet: "Greg said." Although Hainblet admitted first hearing the rumor on the eve of the original October 5, 1979 election, he took no action to disavow his role in the circulation of the rumor or to deny its truthfulness for 9 months, until the union meeting approximately 1 week before the July 11, 1980 rerun election. Mance denied the truth of the rumor in private con- versations with coemployees and publically at the com- pany meeting I week prior to the second election, but nevertheless the story persisted. find that Hamblet was the original source of the rumor and that he knowingly permitted it to circulate for 9 months to neutralize Mance's effectiveness as a pro- company supporter in the second election. IL THE WAIVER OF INITIATION FEES There is a considerable amount of credible evidence that employees were told that union initiation fees would be waived if authorization cards were signed before the election. Employee Saunders testified that on one occa- sion before the first election employee Linda Black, while soliciting cards, told her and three coemployees that initiation fees would be waived if cards were signed then, but would be required if signed later. Employee Staton testified that employee Mary Fronek said the same thing to her and another employee while soliciting cards before the second election; that the other employee stated she would sign to avoid payment of fees; and that, on another occasion, employee Swinke repeated the waiver assurance to her while soliciting signatures. And, finally, employee Riley corroborated the testimony of Saunders, placing the conversation at a time during the second election campaign. Swinke was not called to testify about the waiver as- surance. Fronek denied making any such statements and admitted distributing only one authorization card; and she admitted, then denied, being one of the most active union campaigners, despite contrary testimony from union officials and a number of coemployees. Her testi- mony is rejected in its entirety as lacking in credibility. Throughout her brief testimony, she left the clear im- pression that she appreciated neither the seriousness of the proceeding nor the obligations of her oath. Black ad- mitted discussing the matter of fees and dues with coem- ployees (no initiation fees for persons employed "when the union was voted in"; no dues until 30 days after con- tract ratification), but denied ever connecting authoriza- tion cards with initiation fees. I am unable to credit her testimony for a number of reasons: she was angry with the Company because she was terminated after the second election and this compromised her credibility; as a witness she was unconvincing, appearing to hold back the full account of events, particularly regarding the nature and extent of her campaign efforts on behalf of the Union with respect to employers other than Re- spondent; and, finally, the substance of her admitted statements to employees regarding initiation fees (none for employees at the time the Union voted in) is at odds with instructions purportedly given her by union officials (no fees for any person employed at the time of contract ratification). Union policy that initiation fees would be paid only by persons employed after contract ratification was clearly stated in campaign literature distributed during the first, but not the second, campaign. By the time of the second election, almost a third of the potential bargaining unit represented new hires. There is also testimony by union officials that each signature card was followed up by a home visit at which time the initiation fee policy was ac- curately restated by a union official and that, at "every union meeting," the initiation fee policy was restated. However that may be, two facts are clear: one, that even the Union's most active campaigners, Black and Fronek, did not understand that policy (Black: no fees for per- sons employed before Union voted in; Fronek: "Don't understand which employees would pay fees"); the other, that little if any attention was given by the Union to instructing card solicitors about that policy. In this connection, International Representative Hamblet testi- fied that he personally instructed Black about how to so- licit cards; that he stressed as "very important" the fact that no questions should be answered; that no instruc- tions were given about the payment of fees or dues; and that it was left to Black and several other key campaign- ers to pass along those instructions to other employees who would be expected to assist in the card solicitation effort. At the same time, Local Union Business Agent Pavnica testified that he, not Hamblet, gave instructions to Black and that he authorized her to answer questions except those she "can't answer." Black testified that she received solicitation instructions only once from Pavnica or the local union president, but not from Hamblet. I find and conclude that Black, Fronek, and Swinke did state to coemployees that initiation fees would not be paid if authorization cards were signed during the cam- paign; that at least one employee signed a card for that reason; and that such assurances could have been articu- lated by these three lay employees only if they had been so prompted by union officials. Black, Fronek, and Swinke were full-time employees of Respondent; they were not employed by the Union at any relevant time leading up to the second election and there is no evidence that they received any consideration for their campaign activities. The extent of Swinke's ac- tivities are undiscernable from this record. Fronek, I find, was one of the most active union campaigners, but even then her activity was limited to card solicitation, at- tendence of union meetings, button wearing, and other "convincer" activities ("I could find out [how you voted] and make it hard on you"). Black, on the other hand, clearly was the Union's "point" employee during the entire campaign: she made the initial contact with the Union to advise it of the employees' desire to organize; she obtained and distributed the first authorization cards; she instructed others on how to solicit; she handbilled generally and, specifically, assumed primary responsibil- ity for presenting to Respondent's administrator for sig- 566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nature a "contract" drafted and distributed to her by union officials, pursuant to which the administrator would agree to "stop all the harassment. . . never again unjustly lay-off, discipline or fire any worker . . . raise your wages," pay "damages. . to the extent of compa- ny assets" and "assume personal liability for true and faithful performance"; she threatened (as found below) to give an employee a "hard time" if she voted for the Company; she made more than 40 house calls with a union official to speak with employees; she attended all union meetings; she was a union observer at the first election; and she was known by bargaining unit members as the knowledgeable campaigner to whom they could go for information about other contracts negotiated by the Union, expected wages and working conditions, strike procedures, selection of stewards and negotiating committee members, what the Union could do for them, and the salaries of union officials. After the campaign for the second election and although still employed by Re- spondent, Black assisted the Union in its campaign at an- other medical facility (not owned by Respondent): she went on house calls with a union official; she made tele- phone calls to other employees and relayed information to the Union; and she related to these employees her ex- periences at Respondent's facility. Still later after she was terminated by Respondent, Black spent a great deal of time at the union hall and volunteered for picket duty at another employer's facility. All the while, the Union attempted to find employment for her. HI. BREACH OF BALLOT SECRECY There is credible evidence that Black, Fronek, and Swinke indicated they could ascertain how an employee voted and would make it hard on those who voted against the Union. Employee Staton testified that on sep- arate occasions Fronek and Swinke told her they could determine how employees voted; that Fronek told her, "I could find out and make it hard on you"; that Swinke said the same thing; and that Black said, "If you voted for the Company, I'll give you a hard time." None of the three was Staton's supervisor. Staton related this to her husband (a nonbargaining unit employee), security guard Botkin, and a nurses aide. Botkin and her husband dis- puted the claim that votes could be identified. Employee Saunders testified that Black, several months after the first election, indicated that she knew how Sanders voted. Black denied making such a statement. As indicat- ed above, her testimony and that of Fronek is not cred- ited. IV. UNION PHOTOGRAPHING OF COMPANY SUPPORTERS Employee Botkin testified that, one evening prior to the second election, Pavnica, on the property with other campaigners, took two photographs of him about 10-15 minutes after he had rejected a union handbill. At the time he saw the two flashes, Botkin was seated in a com- pany truck 50-60 yards from Pavnica. He testified that Pavnica took two additional photographs of nurses and aides. He felt he was being harassed. Supervisor Mudron testified she saw an unidentified union organizer panning a camera toward one of Respondent's buildings 3-5 weeks before the rerun election, but saw no flashes. Her testimony is rejected for vagueness; Botkin's is credible, but no improper inferences can be drawn. Pav- nica's testimony (as well as the photographs and nega- tives) indicates that only one photograph was taken of Botkin and several others were taken of union campaign- ers; that Botkin's vote was to be challenged and the pho- tograph might be of some evidentiary value; that the other photographs were taken merely to use up the roll of film before developing it the next day for other unre- lated purposes; and that no effort was made to photo- graph employees who rejected union literature. V. DISCUSSION NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973), compels setting aside an election when a union offer to waive an initiation fee is conditioned on an employee signing an authorization card prior to the election. Credible evi- dence, as found above, establishes that union supporters Black, Fronek, and Svvinke all made such statements on separate occasions during the campaign for the second election and that at least one employee acted on the waiver assurance. The real issue presented is whether such employee statements are attributable to the Union. For reasons set forth below, I conclude that they are. As discussed above, there is strong circumstantial evi- dence to suggest that Black, Fronek, and Swinke were actually authorized and instructed to make waiver assur- ances to employees in an effort to obtain authorization card signatures. For example, the testimony of union of- ficials about what instructions were given to card solici- , tors was contradictory in significant respects; the testi- mony of Black and Fronek regarding union policy con- cerning the payment of initiation fees was conflicting; and lay employees such as Black, Fronek, and Swinke could not have articulated the assurances I find were given without prompting by or instruction from experi- enced union officials. Moreover, applying common law agency principles, NLRB v. United Insurance Co., 390 U.S. 254 (1968), as modified by Section 2(13) of the Act (that eliminates actual authority or subsequent ratification as controlling factors in the determination of "agency" issues), I fmd Black, at all relevant times, to be an agent of the Union based on the doctrine of apparent authority. In this re- spect, Emerson Electric Co., 247 NLRB 1365 (1980), is dispositive. There, the Board affirmed an administrative law judge's determination of agency during an organiza- tional campaign: Alone among the union adherents, Jason Williams enjoyed a position in which employees looked to him as a spokesman for the Union when he purport- ed to speak on its behalf. . . . Williams helped to initiate the campaign. He was in contact with Union vice president, Lynn Bonner, even before Carlton Homer arrived to begin the campaign. Williams was considerably more active than any other em- ployee, and as indicated was reimbursed for some of his expenses. By his own testimony, he obtained SALEM VILLAGE I 567 some 50-signed authorization cards, and engaged in hundreds of conversations about the campaign. Em- ployees, including union adherents, looked to him as a person with inside information and some responsi- bility in conducting the Union's campaign. All this does not mean that Williams lost his right to express his own views as an individual employee, or that he did not do so on occasions. However, when Wil- liams purported to speak on behalf of the Union, he was looked upon by the employees as a person who spoke with inside information and some degree of authority. Therefore, Williams can fairly be consid- ered as a Union agent in making such statements. [Id. at 1380-1381.] Unlike employee Williams in Beaird-Poulan, Black was not reimbursed for "some" of her expenses. Like Wil- liams, however, Black was the Union's "point" employee during the entire campaign: she made initial contact with the Union; she was given the first authorization cards for distribution; she was authorized to instruct other employ- ees on how to solicit and what to tell those employees being solicited; she handbilled; she assumed primary re- sponsibility for presenting to Respondent's administrator a "contract" prepared by the Union and given to her; she threatened coemployees with a hard time if they voted against the Union; she made more than 40 house calls with a union representative; she was a union ob- server at the first election; and, perhaps most important- ly, she was the employee to whom all other employees looked for inside information, such as expected wages and benefits, strike procedures, selection procedures for stewards and negotiating committee members, and sala- ries of union officials. Even her activities on behalf of the Union after the second election tend to confirm what already was apparent before that election—that Linda Black was an agent of the Union: she assisted the Union during another campaign at another employer's facility; she went on house calls with an organizer; and she re- layed information gathered from employees at that facili- ty to the Union. See also Jr. C Penney, 214 NLRB 445 (1975); NLRB v. Belcor, 652 F.2d 856 (9th Cir. 1981). Finally, the Union contends that, whatever illegality may attach to the statements of the three employees, its effect is negated by the fact that the Union made clear its true policy concerning liability for initiation fees and dues: in campaign literature issued during the first elec- tion campaign; during house visits to card signers; at "every" union meeting; and in a letter sent to each em- ployee. Concerning the campaign literature used in the first campaign, a substantial part of the work force had turned over by the time of the second campaign. Regard- ing the letter, uncontradicted evidence is that not all em- ployees read it. Regarding the union meetings, there is no evidence concerning how many employees attended at least one such meeting. And regarding house visits, there is no evidence that the one employee who was co- erced into signing an authorization card was given an opportunity to revoke the authorization. In any event, given the conflicting testimony of Black and Fronek about what that union policy was, the waiver assurances actually given by Fronek, Black, and Swinke and the union statements at meetings, house calls, and in litera- ture, there was sufficient confusion concerning the waiver of initiation fees to interfere with the employees' free choice. NLRB v. Johnson & Hardin Co., 554 F.2d 275 (6th Cir. 1977). As this Savair violation itself furnishes adequate grounds on which to set aside the election and revoke the Union's certification as exclusive bargaining repre- sentative, there is no need to consider at this time the legal effect of other conduct found above. On these findings of fact and conclusions of law, and on the entire record and the Act and the Board's Order of August 25,e1982, in this case (263 NLRB 704), I issue the following recommended' ORDER It is recommended that the certification issued in Case 13-RC-15215 is revoked, and IT IS FURTHER RECOMMENDED that the complaint is dismissed. 1 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.