Brightview Care Center, Inc.

352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Brightview Care Center, Inc. and Warehouse, Mail Order, Office, Technical, and Professional Em- ployees Union, Local 743, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL- CIO, Petitioner . Case 13-RC-17315 January 17, 1989 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS The National Labor Relations Board, by a three- member panel, has considered the objections to an election held May 21, 1988, and the Regional Di- rector's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 44 for and 9 against the Petitioner, with no chal- lenged ballots. The Board has reviewed the record in light of the exceptions and brief, and adopts the Regional Director's findings and recommendations.' In rec- ommending that Objection 1 be overruled, the Re- gional Director found that there was no evidence that the Petitioner was responsible for certain anti- Semitic remarks2 allegedly made during the cam- paign. Thus he found no evidence that the individ- uals who allegedly made these remarks were agents of the Petitioner or even supporters of the Petition- er. In addition, he found that there was no evi- dence that the Petitioner engaged in an anti-Semitic campaign, or that the remarks arose only after the organizing campaign began, or that the anti-Semitic remarks permeated the campaign. The Employer contends that the Regional Direc- tor's recommendation rests on misconceptions of law. The Employer argues that this case should not turn on whether the Petitioner was responsible for the alleged anti-Semitic remarks, but on a showing that the remarks "destroyed the atomsphere neces- sary to the exercise of free choice in the represen- tation election." In support of its contention that the alleged remarks require that the election be set aside, the Employer relies on Sewell Mfg. Co., 138 NLRB 66 (1962); NLRB v. Silverman's Men's Wear, Inc., 656 F.2d 53 (3d. Cir. 1981); NLRB v. Triplex Mfg. Co., 701 F.2d 703 (7th Cir. 1983); NLRB v. Eurodrive, Inc., 724 F.2d 556 (6th Cir. 1984); and M ' In the absence of exceptions, we adopt the Regional Director's rec- ommendation that Objections 2, 3, and 4 be overruled. 2 The alleged inflammatory remarks were that "the owners would not give us raises because they were Jews and cheap," that "we might as well get a union because the owners are cheap and maybe the union will give us money," that "the Employer is going to buy the election off," and that "maybe Hitler did the right thing." & M Supermarkets v. NLRB, 818 F.2d 1567 (11th Cir. 1987). We find that these cases do not control the instant case. At the outset, we note that the inflammatory ap- peals to prejudice were clearly attributed to the employer in Sewell and to a union official in both Silverman's and Eurodrive. In M & M Supermarkets, the objectionable remarks were made by an identi- fiable, outspoken advocate and supporter of the union (see fn. 4, infra). In Triplex Mfg. Co., the re- marks were made by a Catholic priest during a union meeting held at the priest's church. There, the Seventh Circuit specifically relied on evidence that the union not only failed to repudiate the priest's remarks, but also continued to hold meet- ings in his church, thereby suggesting that it ap- proved his participation in the union's campaign. Thus, none of these five cases relied on by the Employer involved remarks by unidentified em- ployees, who possibly included employees opposed to union representation, as is the case here. That none of the alleged prejudicial remarks were attrib- uted to the Petitioner or an agent of the Petitioner is significant in evaluating the impact of these re- marks on the election here. In Beatrice Grocery Products, 287 NLRB 302 (1987), the Board reiterated a long-adhered-to dis- tinction made in Sewell: In Sewell Mfg. Co., 138 NLRB 66 (1962) the Board held that it would set aside elections when a party embarks on a campaign which seeks to overstress and exacerbate racial feel- ings by irrelevant, inflammatory appeals. 138 NLRB at 72. Sewell itself involved a party's sustained course of conduct, deliberate and calculated in intensity, to appeal to racial prej- udice. The Board in Sewell distinguished such conduct from isolated, casual, prejudicial re- marks. The Board has adhered to this distinc- tion. Applying this distinction here, we find that the prejudiced remarks were isolated remarks made by unidentified employees, apparently in the course of casual conversations among employees.3 As more fully described in the Regional Director's report, such comments also were being made even before the union organizing began. One witness "be- lieved" both union and, nonunion supporters made s There is no evidence indicating that the Petitioner knew about these remarks or condoned them. Indeed, according to the Employer's brief, the Employer was "unaware of these statements, [and] was unable to re- spond to them prior to the election." The Employer has not explained how the Board could find that the racial issue was systematically injected into the campaign or that the remarks were sustained, deliberate, and cal- culated in intensity, where there is no evidence that either party knew about them prior to the election. 292 NLRB No. 46 BRIGHTVIEW CARE CENTER the remarks The only other witness presented to the Regional Director did not "specify or indicate that they were union supporters, but they sounded as if they were for the union " This evidence, even if credited in full, does not rise to the level of a "sustained inflammatory appeal" or a systematic at- tempt to inject religious issues into the campaign 4 We find that the Employer has failed to meet its initial burden of demonstrating a prima facie case for setting aside the election In sum, while the alleged remarks are reprehensi ble, we find that they do not constitute the kind of gratuitous campaign appeal to prejudice proscribed in Sewell and its progeny Accordingly we adopt the Regional Director's recommendation that a cer- tification of representative be issued 4 This same distinction was applicable in M & M Supermarkets where the prejudicial remarks were made by a single identifiable union support er CERTIFICATION OF REPRESENTATIVE 353 IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Warehouse, Mail Order, Office, Technical, and Professional Employees Union, Local 743, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, AFL-CIO and that it is the exclusive collective bargaining representative of the employees in the following appropriate unit All full-time and regular part time nonprofes- sional employees, including Nurses Aides, Housekeeping Cooks, Orderlies, Laundry, Die tary, Activity Aides and Maintenance employ ees employed at the Employer's facility cur rently located at 4538 North Beacon, Chicago, Illinois, but excluding professional employees, registered nurses, licensed practical nurses, business office clerical employees, guards and supervisors as defined by the Act