Mental Health Association, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356 NLRB No. 151 1220 Mental Health Association, Inc. and Service Employ- ees International Union, Local 509, Petitioner. Case 1–RC–22449 April 29, 2011 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE AND HAYES The National Labor Relations Board, by a three- member panel,1 has considered objections to an election held June 8, 2010, and the hearing officer’s report rec- ommending disposition of them. The election was con- ducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 82 for and 131 against the Petition- er, with 8 challenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the ex- ceptions and briefs,2 has adopted the hearing officer’s 1 Member Hayes is a member of the panel, but did not participate in this decision on the merits. In New Process Steel v. NLRB, 130 S.Ct. 2635 (2010), the Supreme Court left undisturbed the Board’s practice of deciding cases with a two-member quorum when one of the panel members is unable to participate. Under the Court’s reading of the Act, “the group quorum provision [of Sec. 3(b)] still operates to allow any panel to issue a decision by only two members if one member is dis- qualified.” New Process Steel, 130 S.Ct. at 2644; see, e.g., Correctional Medical Services, 356 NLRB 279, 279 at fn. 1 (2010). The Employer filed a motion seeking Member Becker’s recusal, and that motion was granted. Member Becker recused himself on the grounds that an employee of his former employer, the Service Employ- ees International Union, represents or represented a party in this case. See Service Employees Local 121RN (Pomona Valley Hospital Medical Center), 355 NLRB 234 (2010) (Member Becker, ruling on motions); 5 C.F.R. sec. 2635.502(a) and (b)(1)(iv); Executive Order 13490 secs. 1 (2) and 2(i), (j), (k) (Jan. 21, 2009). 2 On April 28, 2011, the Board granted the Service Employees Inter- national Union’s motion to allow amicus brief. The Petitioner moves to strike the Employer’s exceptions and/or brief in support for violating Sec. 102.69(j) of the Board’s Rules and Regulations. The Petitioner argues that the Employer’s exceptions document contains argument, and that when that argument is combined with the Employer’s brief in support, its submissions exceed the 50- page limit allowed by the Rules. The Petitioner appears to rely on the Board’s Rules governing unfair labor practice proceedings, particularly Sec. 102.46(b)(1) prohibiting argument in an exceptions document if a supporting brief is also filed. See Special Touch Home Care Services, 349 NLRB 759, 759–760 (2007); Hotel del Coronado, 344 NLRB 360, 360 (2005). The Rules applicable to postelection representation pro- ceedings, however, contain no similar prohibition. See Sec. 102.69(f) and (j)(l). Although there are good reasons for similarly limiting argu- findings3 and recommendations,4 and finds that the elec- tion must be set aside and a new election held. [Direction of Second Election omitted from publica- tion.] ments in representation case exceptions, we will not do so here. The argument contained in the Employer’s submissions exceeds the 50-page limit by approximately 5 pages, and the Petitioner has failed to demon- strate any resulting prejudice. We therefore deny this aspect of the Petitioner’s motion. The Petitioner also argues that the Employer’s brief in support of exceptions should be stricken because it does not contain an index and table of authorities, which are required for briefs exceeding 20 pages. See Sec. 102.69(j)(1) of the Board’s Rules. After the Petitioner filed its motion, however, the Employer moved to substitute an amended sup- porting brief containing the required index and table. The Employer’s motion is granted, and this aspect of the Petitioner’s motion is denied as moot. 3 The Employer has excepted to some of the hearing officer’s credi- bility findings. The Board’s established policy is not to overrule a hearing officer’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for reversing the findings. 4 The hearing officer found merit to the Petitioner’s Objection 22, al- leging that, at an employee meeting about 1 week prior to the election and in a letter to employees a few days later, the Employer made state- ments concerning employee bonuses that tended to interfere with em- ployee free choice. Although we affirm the hearing officer’s finding, we disagree with her analysis insofar as she deemed it irrelevant whether the Petitioner had previously made statements regarding em- ployee bonuses, including purported statements to the effect that it would force the Employer to pay bonuses. Nevertheless, even assum- ing that the Petitioner made such statements, we agree with the hearing officer that, under the circumstances here, Objection 22 should be sustained. We also agree with the hearing officer that the election should be set aside based on the totality of the Employer’s election-day conduct. Indeed, we would set aside the election based on this conduct alone. As found by the hearing officer, on the day of the election, the Employ- er, without advance notice, changed the route and method by which employees would enter the facility by limiting access to the employee entrance and by giving control over that entrance to openly antiunion employees for a substantial portion of the voting period. The Employer also hired security, erected a fence around part of its parking lot, and posted private property signs, all apparently without security justifica- tion. We find that the totality of this conduct reasonably tended to interfere with employees’ free and uncoerced choice in the election. We thus find it unnecessary to pass on the hearing officer’s further finding that the Employer’s stationing of openly antiunion employees at the employee entrance, by itself, warrants a new election. Finally, given that the Employer’s conduct affected all voters, we find that a second election is warranted notwithstanding the election margin. Cf. Freund Baking Co., 336 NLRB 847, 847 fn. 5 (2001); Scientific-Atlanta, Inc., 278 NLRB 467 (1986).