Transcare New York, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 355 NLRB No. 56 326 Transcare New York, Inc. and International Associa- tion of Emts and Paramedics, National Associa- tion of Government Employees, SEIU Local 5000, Petitioner. Case 29–RC–11762 July 29, 2010 DECISION ON REVIEW AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND BECKER The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel, which has considered the Petitioner’s request for review of the Acting Regional Director’s Supplemental Decision on Objections, Order consolidating cases and notice of hearing. The Petitioner’s request for review is granted solely with respect to the Petitioner’s Objection A.3. Having carefully considered the matter in light of the Petitioner’s request for review, we find, contrary to the Acting Regional Director, that the Petitioner’s Objection A.3 raises substantial and material factual issues of fact that can best be resolved after a hearing. The request for review is denied in all other respects. The mixed manual ballot and mail ballot election was conducted pursuant to a Decision and Direction of Elec- tion,1 in a unit of all full-time and regular part-time emergency medical technicians and paramedics em- ployed in the Employer’s New York City 911/EMS Divi- sion.2 The tally of ballots shows 99 for and 127 against the Petitioner, with 14 challenged ballots, an insufficient number to affect the results of the election. On Decem- ber 7, 2009, the Petitioner filed timely objections to con- duct affecting the results of the election. In Objection A.3, the Petitioner alleged that there was unlawful surveillance of employees by the Employer’s managers and supervisors outside of the voting sites at the Brooklyn, Beth Israel, Montefiore, and Mount Sinai facilities. The Acting Regional Director directed a hear- ing with respect to the alleged conduct at the Brooklyn Hospital site, finding that there were substantial and ma- terial issues, including issues of fact and credibility, that would be best resolved at a hearing. In reaching this decision, the Acting Regional Director applied Board law addressing managerial or supervisory surveillance at election locations and found that, in light of the evidence 1 The manual balloting was conducted on November 17 and 18, 2009, and the mail balloting was conducted from November 10–24. The ballot count took place on November 30. 2 The unit excluded all emergency medical technicians and paramed- ics employed in the Employer’s Ambulance Transport Division, Spe- cial Operations Division, and Westchester County 911/EMS Division, all other employees, dispatchers, ambulette drivers, guards, managers and supervisors as defined in the Act. that at this site two supervisors were standing within 50 yards of the voting site, in areas that all voters had to pass on the way to the polling place, a hearing was war- ranted. Although the Acting Regional Director analyzed the objection as to the Brooklyn site under a surveillance standard, he failed to apply the surveillance standard in analyzing similar allegations at the other three sites. Ap- plying an electioneering analysis, he overruled Objection A.3 with regard to the alleged surveillance at the Beth Israel, Montefiore, and Mount Sinai sites. The Petitioner contends in its request for review that the presence of supervisors at the Beth Israel, Monte- fiore, and Mount Sinai voting sites was equally, if not more, coercive than the presence of supervisors at the Brooklyn site, and that the hearing ordered on Objection A.3 for the Brooklyn site should be expanded to include other voting sites.3 The Petitioner asserts that the em- ployees had to pass supervisors at all three sites in order to enter and leave the polling site, a contention not ad- dressed by the Acting Regional Director. Section 102.69 of the Board’s Rules and Regulations provides for a hearing where the Regional Director con- cludes that the objections raise substantial and material issues of fact. As the objecting party, the Petitioner has the burden of providing evidence in support of its objec- tions. NLRB Casehandling Manual (Part Two) Repre- sentation Proceedings, Section 11392.10; Park Chevro- let-Geo, 308 NLRB 1010 fn. 1 (1992). A hearing should be held if the Petitioner has established that it could pro- duce at a hearing evidence that, if credited, would war- rant setting aside the election. NLRB Casehandling Manual (Part Two) Representation Proceedings Section 11395.1. The Petitioner may satisfy its burden by spe- cifically identifying witnesses who would provide direct rather than hearsay testimony to support its objections, specifying which witnesses would address which objec- tions. Builders Insulation Inc., 338 NLRB 793, 794–795 (2003), citing, inter alia, NLRB Casehandling Manual (Part Two) Representation Proceedings, Section 11392.6; Heartland of Martinsburg, 313 NLRB 655 (1994); Hol- laday Corp., 266 NLRB 621 (1983).4 3 The hearing was held from April 6–9, 2010. 4 Although our dissenting colleague contends that the Board in The Daily Grind, 337 NLRB 655, 656 (2002), expressed a preference for evidence in support of objections in the form of an affidavit or affida- vits, the Board has not required evidence in this form. Indeed, in The Daily Grind, the Board found that “[a]t a minimum, the Employer should have identified witnesses and provided a description of the relevant information they could provide,” a requirement clearly met in the instant case. Id. In Holladay Corp., the Board held that when an objecting party has provided details of the alleged objectionable con- duct and identified witnesses who allegedly could provide supporting evidence, the Regional Director could not overrule the objections solely because the objecting party had not produced the witnesses or their TRANSCARE NEW YORK, INC. 327 Contrary to our dissenting colleague, we find that the Petitioner has met its burden of establishing that it could produce specific evidence at a hearing that, if credited, would warrant setting aside the election. See NLRB Casehandling Manual (Part Two), Section 11395.1. The Petitioner’s Position Statement in Support of Objections, submitted to the Region, identified witnesses who di- rectly observed the alleged surveillance at each of the facilities, which involved senior managers stationing themselves outside of the polling areas at the Beth Israel, Montefiore, and Mount Sinai facilities in view of the employees as they entered and exited the polling sites. The Petitioner also provided an email sent from its attor- ney to a Board agent on November 17, the first day of the manual balloting, complaining that supervisors were stationed outside of the polling area at the Beth Israel facility. We find that this evidence raises substantial and material factual issues requiring a hearing. In directing a hearing as to these three sites, we are mindful that the Acting Regional Director directed a hearing with respect to the Brooklyn facility, involving similar facts. We further consider that there is a pending unfair labor practice complaint in related Case 29–CA– 29632, alleging unlawful surveillance by the Employer’s supervisors, in violation of Section 8(a)(1) of the Act. Two of the supervisors at issue in Objection A.3 (Sharon Greaves and Michelle Cohen) were also named in that complaint for their alleged surveillance activities at the Beth Israel site, and Greaves and Maryanne Sawyer were named in an additional allegation involving unlawful surveillance. J. P. Mascaro & Sons, 345 NLRB 637 (2005), relied on by our dissenting colleague, is distinguishable. In that case, the Board decided the merits of an unlawful sur- veillance objection based on the evidence developed at an evidentiary hearing and, reversing the judge, found that the presence of the employer’s president at least 35 feet and up to 54 feet away from the front door of the facility for most of the day of the election did not consti- tute objectionable surveillance because there was insuffi- cient evidence to establish that the employees had to pass by the president in order to vote.5 affidavits. In so finding, the Board recognized the practical difficulties that may confront an objecting party in securing the voluntary coopera- tion of employee witnesses. 266 NLRB at 622. See also Builders Insulation Inc., supra; Heartland of Martinsburg, 313 NLRB at 655 (finding that the Board’s rules do not require that the objecting party’s evidence “include signed witness statements or affidavits.”). 5 In J. P. Mascaro, the Board found that the administrative law judge conflated the analysis applied in surveillance and electioneering cases in finding that the president’s presence, without more, constituted ob- jectionable conduct. To begin, it is clear that J. P. Mascaro, where the Board analyzed the merits of an objection based on re- cord evidence developed at an evidentiary hearing, is not controlling here, where the only issue is whether there is sufficient evidence to warrant a hearing in the first place. Furthermore, the Petitioner has alleged sufficient facts that, if established at a hearing, would distinguish this case from J. P. Mascaro. For example, the Petitioner alleges, and names supporting witnesses who directly observed the conduct, that employees were “required” to pass a senior manager at the Beth Israel site in order to enter and exit the polling place, and that senior managers at all three of these sites were standing outside the poll- ing areas “within view of employees as they entered and exited the polling places.” In J. P. Mascaro, by contrast, the Board found that the absence of any such evidence that employees were required to pass by the president in order to vote was determinative. Similarly, although the union in J. P. Mascaro never objected to the president’s presence, the Petitioner in the instant case sent an email to a Board agent during the manual election objecting that supervisors were standing in front of the voting sites during the election. Finally, in the case before us, unlike in J. P. Mascaro, there were other surveillance allega- tions set for hearing in both the unfair labor practice case and the objections case (Objection A.1 and the aspect of Objection A.3 involving the Brooklyn site). Under these circumstances, we find that Objection A.3 raises substantial and material issues of fact warranting a hearing. ORDER This case is remanded to the Regional Director for fur- ther appropriate action. MEMBER SCHAUMBER, dissenting in part. While I agree that the Acting Regional Director erred in not applying a surveillance analysis in his assessment of the Petitioner’s objection, I would still deny the Peti- tioner’s request for review to the extent it alleges objec- tionable conduct during the election at the Beth Israel, Mount Sinai, and Montefiore facilities. I do not believe the Petitioner has carried its significant burden of dem- onstrating a “compelling reason” for granting review in this case, apparently on a theory that the Acting Regional Director’s determination that no substantial and material factual issues warranting a hearing existed was “clearly erroneous on the record.” See Section 102.67(c) of the Board’s Rules and Regulations.6 6 The Petitioner’s request for review of supplemental decision fails to cite Sec. 102.67 or to state the grounds upon which, pursuant to the Board’s Rules and Regulations, a grant of review is warranted in this case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 328 As the Board explained in Frontier Hotel, 265 NLRB 343, 343 (1982), “[t]he burden is on the objecting party to demonstrate to the Board that the evidence it submit- ted to the regional director, if credited, would warrant setting aside the election.” See also NLRB Casehandling Manual (Part II) Representation Proceedings, Section 11395.1. The primary evidence the Petitioner relies upon7 is the position statement it submitted to the Acting Regional Director in support of its objections, and that statement contains more argument than representations of fact as to which specifically identified witnesses would testify.8 However, even crediting the bare-bones allegations contained therein, I cannot conclude that the Acting Regional Director erred in determining that a hearing was unnecessary. Specifically, the position statement alleges only that two identified witnesses observed various managers and supervisors standing on street corners approximately 150 feet from the facilities where voting was to occur. See Position Statement in Support of Objections at 1–2. There is no representation that the managers or supervi- sors stood in any designated no-electioneering zone, that they had direct views of the polling area, or that they were otherwise positioned to ascertain whether the em- ployees entering the facility were doing so to vote rather than for job related or other purposes. Nor, at least in the sections of the position statement that recites facts as to which identified witnesses would testify, is there any 7 The Petitioner also submitted “a disorganized stack of printed e- mails messages” that “were not arranged chronologically, or by Objec- tion number, and the particular Objection to which each e-mail per- tained was not identified.” Acting Regional Director’s Supplemental Decision on Objections at 10. One of these emails, dated November 17, 2009, was from the Petitioner’s counsel, Jean Zeiler, and alleged that supervisors were standing within 50 yards of the polls, apparently at the Brooklyn, Beth Israel, and Mt. Sinai facilities. See id. My col- leagues rely on this document as evidence warranting a hearing despite the fact that it fails to state any basis for Zeiler’s assertion and identifies no witness with firsthand knowledge who would testify to the facts set forth therein. Moreover, Zeiler was the same counsel who subse- quently prepared the Petitioner’s position statement and she does not identify herself as a witness and did not repeat the same assertions in the position statement. Thus, the email carries no more evidentiary value than a naked and unsupported assertion in a brief. The Regional Director properly declined to direct a hearing on the basis of this docu- ment and my colleagues err in relying upon it. 8 The Board has stated its preference for affidavits and documentary evidence, particularly where a party is challenging a Regional Direc- tor’s factual findings. See, e.g., The Daily Grind, supra, 337 NLRB at 656 (party is “required to supply the Board with some evidence sup- porting its [objection], preferably in the form of an affidavit or affida- vits.”); cf. Aramark Sports & Entertainment Services, 327 NLRB 47, 47 (1998) (“[T]he petitioner’s request for review should have been accompanied by documentary evidence [including affidavits] previ- ously submitted to the Regional Director raising serious doubts as to the Regional Director’s factual findings.”); Sec. 102.71(a)(3) of the Board Rules and Regulations. representation that employees had to pass by any man- ager in order to vote; indeed that seems inherently im- plausible given the distance at which the managers were standing from the buildings where voting occurred.9 Contrary to my colleagues, I believe that cases such as J. P. Mascaro & Sons, supra, demonstrate that the facts alleged by the Petitioner are insufficient, as a matter of Board law, to establish objectionable conduct—at the very least as to the Mount Sinai and Montefiore facili- ties.10 In J. P. Mascaro & Sons, the Board found that the presence of the employer’s president, a more senior ex- ecutive than the supervisors at issue here, was not objec- tionable where he was stationed some 30 to 54 feet away from the front door of the facility with no direct view of the polling area, and the evidence did not establish that employees had to pass by him to vote. J. P. Mascaro & Sons, supra, 345 NLRB at 639. If the Board determined that those facts failed to make out objectionable conduct, the Acting Regional Director was clearly on firm ground in finding that the facts alleged by the Petitioner in its position statement were insufficient, even if credited, to warrant setting aside the election in this case.11 For the foregoing reasons, I would deny review. While the threshold for establishing that a Regional Di- rector’s determination that a hearing is unnecessary may not be the most exacting, neither is it trivial. The 9 At p. 3 of its position statement, the Petitioner asserts that a man- ager “stood outside one of the polling locations” in a manner such that “[e]mployees were required to walk past him to enter and exit the poll- ing place.” The position statement does not specifically identify the location where this occurred, how long the manager was present, or what witness would testify to the alleged facts. Under the circum- stances, and given the fact that the manager, by the Petitioner’s own representation, stood some 150 feet from the facility where polling occurred, I cannot say that the Regional Director’s finding that there were no substantial and material issues of fact warranting a hearing was clearly erroneous on the record before him. 10 My colleagues draw the inference that the Petitioner intended to represent that the incident discussed in fn. 9, supra, occurred at the Beth Israel location, and that identified witnesses could testify to it. How- ever, it is not our role “to assume the objecting party’s burden and conduct a ‘fishing expedition’ into the investigatory file [or position statement] for evidence the objecting party has failed to identify.” Frontier Hotel, supra, 265 NLRB at 344. Even if I were inclined to such a generous reading of the unsupported position statement, that would not establish substantial and material facts to support a finding of objectionable conduct at the other two facilities. 11 My colleagues attempt to distinguish J. P. Mascaro & Sons on the ground that the Petitioner here asserts that the supervisors were in view of employees as they entered and exited the polling places. However, the portion of the Petitioner’s position statement that recites facts to which identified witnesses would testify places the supervisors on public streets some 150 feet distant from and outside of the buildings where voting occurred. They, just as the president in J. P. Mascaro & Sons, may have been in a position to view employees entering or exit- ing the buildings, but that alone does not establish objectionable con- duct. J. P. Mascaro & Sons, supra, 345 NLRB at 639. TRANSCARE NEW YORK, INC. 329 Board’s Rules and Regulations are structured to ensure the expeditious resolution of questions concerning repre- sentation, and to restrict hearings to those cases in which a Regional Director’s investigation reveals that there truly are substantial and material factual issues in dis- pute. Frontier Hotel, supra, 265 NLRB at 344 (“Since our rules require a hearing only in cases in which mate- rial facts are in dispute, hearings in all other cases would waste time, money, and effort for all concerned, while unduly delaying resolution of the question concerning representation and unjustifiably denying unit employees their right to have their election choice implemented through the appropriate certification.”). The Petitioner has failed to establish that the Acting Regional Director’s decision not to conduct a hearing was clearly erroneous. I therefore respectfully dissent.