Golden Years Rest Home

1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Jilts, Inc. d/b/a Golden Years Rest Home and Dis- trict 1199, WV/KY/OH, National Union of Hospital and Health Care Employees, AFL- CIO. Case 9-RC-15128 July 22, 1988 DECISION AND DIRECTION BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges and objections in an election held February 5, 1988, and the Regional Director's report recom- mending disposition of them. The election was con- ducted pursuant to a Stipulation and Agreement for Second (Rerun) Election. The tally of ballots shows 11 for and 7 against the Petitioner, with 4 challenged ballots. The challenged ballots are suffi- cient in number to affect the results of the election. The Board has reviewed the record in light of the exceptions and brief and has adopted the Re- gional Director's findings' and recommendations.2 We agree with the Regional Director's conclu- sion that the Petitioner's organizer, David Free- land, did not violate the Board's rule governing conversations between a party representative and a prospective voter waiting to cast a ballot when he told an employee that the Employer was going to challenge her vote. See Milchem, Inc., 170 NLRB 362 (1968). In so concluding, the Regional Director relied on the findings that the conversation be- tween Freeland and the employee did not take place within the polling place or in the corridor leading to the polling area, the employee was not in line waiting to vote, the polls had not opened, and in any event, the conversation was brief. 1 In the absence of exceptions, we adopt pro forma the Regional Di- rector's recommendation to overrule the challenges to the ballots of Oga Combs, Grace Shepherd, Catherine Wireman, and Brenda Patton; and to overrule the Employer's Objection 3 2 The >;mployer's exceptions, in our opinion, raise no material or sub- stantial issues of fact or law that would warrant reversal of the Regional Director's recommendations or require a hearing The Employer, citing Monroe Mfg., Co., 200 NLRB 62 (1972), contends that Freeland's brief re- marks are objectionable under Milchem. We dis- agree. In Monroe Mfg., Co., supra, the company's official approached the line of voters while the polls were opened and advised three employees waiting in line that they could go home as they were ineligible to vote because their names did not appear on the eligibility list. These voters then left the line. The Board adopted the judge's finding that the official's action violated the Milchem rule (even though his remarks concerning eligiblity were accurate) because his remarks to employees in line to vote while voting was taking place con- veyed the impression that the Employer had some effective connection with, if not control over, the election. Thus, the Employer's comments in Monroe Mfg. could reasonably be interpreted as in- dicative of the Employer's authority to unilaterally dictate who could and could not vote. None of the factors relied on in Monroe Mfg. are present in the instant case. Here the conduct at issue occurred outside the polling area and before the polls opened. Further, the substance of Freeland's com- ments could not be interpreted as exhibiting control over or an official connection with the election process. In such circumstances, the Milchem rule does not apply. DIRECTION IT IS DIRECTED that the Regional Director for Region 9 shall, pursuant to the Board's Rules and Regulations, and within 14 days of the date of this Decision and Direction, open and count the ballots of Oga Combs, Grace Shepherd, Catherine Wire- man, and Brenda Patton, and thereafter issue and serve on the parties a revised tally of ballots and the appropriate certification. IT IS FURTHER DIRECTED that the above-entitled matter is remanded to the Regional Director for Region 9 for further processing consistent with this Decision and Direction. 289 NLRB No. 141