Heartwood Extended Health Care, LLC

373 NLRB No. 16 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Heartwood Extended Health Care and Service Em- ployees International Union, Local 775. Case 19–RC–303544 February 5, 2024 ORDER1 BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY The Employer’s Request for Review of the Regional Director’s Decision on Challenges and Objections is de- nied as it raises no substantial issues warranting review.2 The Regional Director sustained Petitioner Objection 8, which alleges that the Employer engaged in objection- able conduct by holding a raffle during the critical period with prizes that included two to three televisions, a lap- top computer, several $100 gift cards, and stereo speak- ers. To determine whether an employer’s granting of a benefit would tend to unlawfully influence the outcome 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2 In denying review, we agree with the Regional Director that the Stipulated Election Agreement is ambiguous under the first step of the framework articulated in Caesar’s Tahoe, 337 NLRB 1096, 1097 (2002), because the Employer’s contract nurses are not explicitly in- cluded in the unit, but do not constitute temporary employees who are ineligible to vote for purposes of Board law. In evaluating temporary- employee status, the Board applies the “date certain” test, under which an employee will be eligible to vote if their tenure of employment is “uncertain” on the eligibility date. See St. Thomas-St. John Cable TV, 309 NLRB 712, 713 (1992). We find that the contract nurses’ tenure of employment was “uncertain,” id., on the eligibility date – that is, that the Employer failed to demonstrate that their tenure was “sufficiently finite,” id. – because their offer letters stated that “[u]pon completion of 8 weeks, you may be offered a full-time position as employee at a modified rate. You may also request to transition to a full time Heart- wood employee before the 8 weeks are complete.” Moreover, the Employer created the contract nurse position when its regular hiring methods were insufficient to meet a staffing shortage, stopped hiring contract employees when a sufficient number of contract nurses accept- ed full-time status to adequately staff its shifts, and plans to resume using contract employees in the future whenever experiencing staffing shortages. Based on these circumstances and the record as a whole, we infer that the contract nurse position was intended, at least in part, to serve as a means of filling full-time nurse positions. We further rely on the fact that at least 13 of the 20 contract nurses continued working for the Employer after their eight-week terms ended, albeit only to the extent that this evidence corroborates the evidence that existed on the eligibility date. See Marian Medical Center, 339 NLRB 127, 128 (2003). We also agree with the Regional Director that, under step two of the Caesar’s Tahoe framework, the extrinsic evidence here indicates that the parties intended to include the contract nurses in the unit. Contrary to the Regional Director’s findings, it was a Board agent, and not the Employer, who sent the October 3 email confirming the Employer’s position that the contract nurses were included in the unit; the Employ- er, however, did not dispute the Board agent’s characterization of its position or otherwise assert that the contract nurses should be excluded from the unit until after the parties had entered into the Stipulated Elec- tion Agreement. of an election, the Board examines four factors: 1) the size of the benefit conferred in relation to the stated pur- pose for granting it; 2) the number of employees receiv- ing it; 3) how employees reasonably would view the pur- pose of the benefit; and 4) the timing of the benefit. See B & D Plastics, Inc., 302 NLRB 245, 245 (1991). Ap- plying this standard, the Regional Director found that the raffle was objectionable based on the objective evidence of its scope, size, and timing, noting that the prizes were worth thousands of dollars, the raffle was held just five days after the Petitioner filed its petition, all unit em- ployees were eligible for the prizes, and the Employer had not previously held similar raffles, although a prede- cessor had held smaller raffles at its Christmas party. The Employer’s Request for Review contends that the objection should be overruled, asserting that the raffle had been planned before the petition was filed, its pur- pose was to boost employee morale in light of the chal- lenges posed by the COVID-19 pandemic, nonunit em- ployees also were eligible to participate in the raffle, and similar raffles were held at the Employer’s other facili- ties.3 The Request for Review also contends that the 3 Notably, the Request for Review does not assert that size of the benefit weighs against finding the raffle objectionable, much less that the absence of evidence that any unit employee received any of the prizes has any bearing on this issue. Because the Employer has not raised this claim, it is not properly before the Board. Although our dissenting colleague, unlike the Employer, asserts that “[t]here is no evidence that any designated bargaining-unit employee received a prize from the raffle,” this observation does not speak to the relevant ques- tion under Board precedent. See Valmet, Inc., 367 NLRB No. 84, slip op. at 3-4 (2019) (raffle with two prizes worth a total of $1,350 in cash value for 87-employee unit was “substantial” benefit; although only two employees ultimately received prizes, “[p]roperly understood, [] the benefit also included the opportunity to compete for those prizes, and every employee in the unit was given that opportunity…”) (empha- sis in original); BFI Waste Systems, 334 NLRB 934, 935-936 (2001) (raffle of five televisions worth $890 was “substantial” benefit, explain- ing that “the Board has not adopted the approach put forth by the dis- sent of focusing on the value of the raffle ticket. Instead, the Board has focused on the value of the raffle prizes…”) (emphasis in original). Thus, the question of how many of the 78 unit employees (out of an approximate 100 total employees at the Tacoma facility) won raffle prizes is an irrelevancy. Our dissenting colleague also argues that “even if every designated bargaining unit employee received a benefit from the opportunity to compete for a prize, so did every other employ- ee at the facility and, indeed, in the entire company,” However, the unit employees made up the vast majority of the facility’s employees, and, as for the “entire company” having the opportunity to participate, there is no evidence that the unit employees knew about the raffles held by the Employer at its other facilities. Since the employees did not work at those facilities, there is also no reason why they would have been aware of events at those locations. Even assuming that the em- ployees did know, we would still find that the raffle was objectionable under all of the circumstances present here. We also decline the dissent’s invitation to speculate on whether a raffle limited to nonunit employees at the Tacoma facility, or to the Employer’s other facilities, would be found objectionable on the basis that unit employees were excluded from it. Again, the Request for Review does not raise these issues, which involve speculated facts not present in this case. The only question presented is whether the raffle constituted objec- tionable conduct. In finding that it did, we do not endorse any language DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Regional Director erred in relying on the fact that the Employer had not previously held a raffle at the facility because it has only operated the facility for two years. The standard for evaluating grant-of-benefit cases is an objective one. See Gulf States Canners, 242 NLRB 1326, 1327 (1979). Accordingly, evidence of the Employer’s subjective intent is irrelevant to the Board’s disposition of this issue. Moreover, we agree with the Regional Di- rector that it was objectionable notwithstanding the fact that other employees were eligible. Dated, Washington, D.C. February 5, 2024 ______________________________________ Lauren McFerran, Chairman ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, concurring in part and dissent- ing in part. I agree with my colleagues that the Employer’s chal- lenges to the contract nurses’ ballots should be overruled, but I do not rely on the analysis set forth in the Regional Director’s Decision. Furthermore, I disagree with my colleagues that the Employer’s decision to conduct a raffle for all of its employees across all of its facilities on September 19, 2022 violated the Act. The Eligibility of the Contract Nurses The Parties agreed to the terms of the election, and the Stipulated Election Agreement (SEA) defined the bar- gaining unit being sought as: Included: All full-time and regular part-time em- ployees employed by the Employer at its Tacoma, Washington facility. Excluded: Office clerical employees, staff devel- opment employees, staffing coordinators, PRNs, medi- cal records employees, professional employees, Regis- tered Nurses, temporary employees, individuals em- ployed by third-party agencies, confidential employees, managers, guards and supervisors as defined by the Act. I disagree with the Regional Director’s conclusion that the SEA was ambiguous regarding the scope of the bar- gaining unit. The SEA expressly included full-time em- ployees and excluded temporary employees. Before the Board, the Employer is asserting that the contract nurses should be considered temporary employees and, there- in the Regional Director’s Decision that could be read to indicate that it also constituted an unfair labor practice. fore, be excluded from the unit. The question to be de- cided, therefore, is whether or not the contract nurses constituted temporary employees, as that designation is defined by Board law. For the reasons set forth below, I would find that they are not temporary employees. The contract nurses at issue received an offer letter, which referred to the position as “per diem contract em- ployees.” The contract nurses received slightly higher wages and reduced hours, as compared with the Employ- er’s full-time, permanent CNAs and LPNs, and did not receive the benefits available to CNAs and LPNs. The offer letter further stated: Upon completion of [eight] weeks [of work], you may be offered a full-time position as [an] employee at a modified rate. You may also request to transition to a [full-time] Heartwood employee before the [eight] weeks are complete.4 Standing alone, the language set forth in the nurses’ eight-week contracts would clearly make the contract nurses temporary employees. But the evidence estab- lishes that, in fact, the contract nurses were not treated as temporary employees. The evidence strongly suggests that, prior to the election, the Employer characterized the contract nurses as “individuals who are hired for [eight] week contracts with the understanding that they will then transition to becoming regular employees (a sort of pro- bationary period)” and affirmatively stated that “those individuals should be included in the unit.” These state- ments, which the Region attributed to the Employer, are supported by, and consistent with, the Employer’s ac- tions; the Employer included the contract nurses on its first two voter lists, only asserting that they should be removed after the mail-ballot election had already begun. Based on this evidence, I conclude that, prior to the elec- tion, the Employer did not consider the contract nurses to be “temporary employees” and that it expected them to stay on permanently after their contracts concluded. In addition, the fact that three of the eight contract nurses at issue had become regular CNAs prior to the election supports this conclusion.5 Therefore, I find that the Em- ployer failed to carry its burden to establish, by a pre- ponderance of the evidence, that the contract nurses are excluded “temporary employees,” and I agree with the Regional Director that their ballots should be counted. The Employer’s Untimely Voter List Additionally, I acknowledge that Section 102.62(d) of the Board’s Rules and Regulations applies here and war- rants denial of the Employer’s request for review regard- ing its untimely voter list. I observe, however, that this case demonstrates how the version of Section 102.62(d) 4 Emphases added. 5 Of the remaining five contract nurses, at least three of them had not yet completed the eight-week “probationary” period by the date of the election. HEARTWOOD EXTENDED HEALTH CARE 3 currently in effect has led to unintended and illogical results. Prior to the adoption of Section 102.62(d), the Board permitted regional directors to determine whether an employer substantially complied with the voter-list requirements, despite untimely service. Section 102.62(d), however, does not allow regional directors any discretion to excuse untimely service of a voter list. URS Federal Services, Inc., 365 NLRB No. 1 (2016); see also Pole-Lite Industries, 229 NLRB 196, 197 (1977). In this case, the Employer served the voter list one day late, and the parties agreed to extend the voting period by sev- en days to avoid prejudice. Yet, if the Petitioner loses the election after the seven contract nurses’ ballots are counted, Section 102.62(d), as interpreted by URS Fed- eral Services, requires that the election be set aside and a second election directed based only on the fact that the voter list was one day late. Under the circumstances here, this rule creates needless additional expenses for parties and frustrates employees’ free choice regarding union representation. The Company-Wide Raffle for Employees Unlike my colleagues, I would grant the Employer’s request for review of the Regional Director’s finding that the Employer’s raffle constituted an objectionable grant of benefits. The record establishes that, in the period leading up to the company-wide raffle, employee motivation and mo- rale was low. Regional Administrator Yasser Alsallom testified that “COVID basically changed morale among staff and healthcare providers” and that the Employer “wanted to do something nice for all [the employees] in the entire company.” In light of this problem of low em- ployee motivation and morale, as well as to address con- cerns regarding employee retention, Alsallom came up with the idea of a company-wide raffle at all of the Em- ployer’s facilities, including the Tacoma facility.6 The record establishes that Alsallom had received approval to move forward with the plans to hold a raffle no later than September 13, 2022, at which time he was not aware that a union organizing campaign was underway at the Ta- coma facility.7 The Employer held raffles at all its facilities, open to all employees, on September 19. The Regional Director found that the Employer violated the Act by holding the raffle at the Tacoma facility. Although the Regional Di- rector claimed to be applying the four factors set forth in 6 Alsallom’s testimony regarding the Employer’s concerns about employee retention is supported by the Employer’s hiring of the con- tract nurses, as discussed above. 7 I note that I am fully aware that the application of the B & D Plas- tics test, discussed infra, is objective, rather than subjective. As the test makes perfectly clear, however, the intent of the Employer is relevant insofar as the record establishes that the manner in which the raffle was conducted was consistent with that intent, and the manner in which the raffle was conducted is absolutely relevant to how it would have been perceived by a reasonable employee. B & D Plastics, Inc., 302 NLRB 245 (1991), his analysis did not in fact consider all four factors. Under B & D Plastics, the first factor to consider is the size of the benefit conferred in relation to the stated pur- pose for granting it. In this case, however the Petitioner failed to present any evidence that the Employer made any explicit or implicit connection between the raffle’s prizes and the upcoming election. As discussed, the raf- fle was open to all employees at the Tacoma facility. There is no evidence that any of the employees to be included in the bargaining unit8 received a prize. Nor is there any evidence that the Employer made any state- ments about the raffle that would have led employees to link the raffle with the election.9 Accordingly, the first factor weighs against finding the raffle objectionable. The second factor is the number of employees receiv- ing the benefit. There is no evidence that any designated bargaining-unit employee received a prize from the raf- fle. Certainly, if no bargaining-unit employee actually received a prize from the raffle, it is hard to imagine how the bargaining-unit employees would view the raffle as connected to their union activities. And, even if every designated bargaining-unit employee received a benefit from the opportunity to compete for a prize, so did every other employee at the facility and, indeed, in the entire company. Again, the ultimate question is whether or not an objective employee would have viewed the raffle as related to the union activity. Neither my colleagues nor the Regional Director cite a case where a raffle was found objectionable based on facts similar to those here. I therefore find that this factor does not support finding that the raffle is objectionable. Factor three considers how employees reasonably would view the purpose of a benefit. It seems as though the Regional Director found that this factor was met pri- marily because “the Employer had not previously held similar raffles or prize giveaways . . . .” The Employer, however, did not have a long tenure from which to draw comparisons, having just purchased the facility in 2020, at the height of the pandemic. The Regional Director fails to consider either the Employer's short tenure as owner or the fact that neither the Employer nor the em- 8 I will refer to these employees as "designated bargaining-unit em- ployees." 9 My colleagues assert that because the Request for Review does not directly address the size of the benefit or whether unit employees actually won prizes, it is not proper for the Board to consider those issues. But the Board cannot correctly apply the first B & D Plastics factor without considering all material facts that would affect whether a reasonable employee might view the raffle as a benefit, regardless of whether the Employer specifically raised those particular facts in its Request for Review. My colleagues also say the lack of winners in the designated bar- gaining unit is an “irrelevancy,” and the Regional Director appeared to find that merely the holding of the raffle was a benefit in and of itself without regard to the surrounding facts. But when all the facts are considered, as they must be, I do not believe that a reasonable employ- ee would view this raffle as a benefit related to this election. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 ployees had ever been faced with working conditions similar to those faced during a global pandemic. Given these facts, in my view it stands to reason that the desig- nated bargaining-unit employees would have understood the raffle to be a direct result of COVID rather than a direct result of the filing of the representation petition.10 Finally, factor four examines the timing of the benefit. I believe that, had the raffle been held only for the desig- nated bargaining-unit employees, the timing would likely have weighed in favor of finding the raffle objectionable. See, e.g., BFI Waste Systems, 334 NLRB 934, 934 (2001) (finding it unlawful for an employer to hold a raffle during the critical period where eligibility was lim- ited to 22 of the 92 bargaining unit members who scored an “excellent” on their inspections); Ameraglass Co., 323 NLRB 701, 701 (1997) (finding it unlawful for the em- ployer to offer unit employees health insurance, paid vacations, and sick leave two days before the election). That is not, of course, what happened here. The employ- ees were aware that the raffle was being offered to the entire facility, if not to the entire company.11 In my view, in light of the fact that the raffle was being offered to all employees, not just those employees involved in the organizing drive, it is not evident that a reasonable employee would have jumped to the conclusion that the raffle was a reaction to the organizing drive. For that reason, I would find this factor to be neutral. Based on the analysis above, I disagree with the Re- gional Director’s finding that the Employer’s raffle con- stituted objectionable conduct.12 I further note, however, 10 The remainder of the Regional Director’s analysis is easily dis- missed. To begin, the Regional Director finds that “there is no evi- dence in the record about the Employer’s decisions on the specific date, size, and scope of the raffle . . . .” This is puzzling, given that those decisions are reflected by the manner in which the raffles took place. If the Regional Director is suggesting that the absence of that evidence trumps the actual sworn testimony by Alsallom that the raffles were motivated by low employee morale and motivation and were not related to the organizing campaign, I do not agree. Next, the Regional Director cites the absence of “evidence that employees knew about the raffle prior to the Petition being filed.” Again, the Regional Director seems to flip the burden of proof here. The Employer was not required to establish that the employees knew about the raffle before the Petition was filed; rather, the Petitioner was required to establish that the em- ployees did not know about the raffle prior to the petition. 11 I note that there is no evidence to suggest that the employees were not aware that the raffle was being held company-wide and fur- ther note that it was the Petitioner’s burden to establish that the raffle constituted objectionable conduct. 12 In support of their position, my colleagues cite, among other cas- es, Valmet, Inc., 367 NLRB No. 84 (2019), a case in which the Board found that the employer had engaged in objectionable conduct by promising a benefit when, “[t]wo weeks before the election, the [em- ployer] announced a contest, in the form of a voluntary, multiple-choice quiz” and monetary prizes for the winners. Id. slip op. at 2. I partici- pated in that case and find it clearly distinguishable from the facts presented here. The raffle there was only open to designated bargain- ing-unit employees. The employer told those employees “that the purpose of the contest was to encourage [them] ‘to learn all the REAL FACTS about the union and what it actually can—and cannot—do.’” that the Regional Director failed to address the obvious predicament that results from this finding. The record contains non-contradicted testimony that the Employer viewed the problems of employee retention, low employ- ee morale, and low employee motivation as serious man- agerial concerns. Yet, had the Employer sought to avoid a “granting of benefits” objection, it presumably could not have legally decided to limit the raffle at the Tacoma facility to non-bargaining unit employees. Nor, presum- ably, could the Employer have satisfied the Act by hold- ing the raffle only at the other two facilities and not at the Tacoma facility. Accordingly, under the Regional Direc- tor’s view of the case, the only solution for the Employer would have been to abandon the raffle entirely, and probably abandon any other effort it might undertake to substantively address its serious managerial concerns, because the effort could be viewed as a benefit to the unit of employees being organized at the Tacoma facility.13 Here, an employer planned, before any representation petition was filed, to take steps to address a critical, company-wide personnel problem. By denying review here, my colleagues are unreasonably telling employers that, once a representation petition is filed, they are pre- cluded from using any non-discriminatory, company- wide action involving benefits to address serious mana- gerial concerns. In my view, this is an overly broad in- terpretation of the law. Therefore, I would have granted review and reversed the Regional Director’s finding that the Employer’s raffle constituted objectionable conduct. Dated, Washington, D.C. February 5, 2024. ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD Id. Moreover, the employer “connected the size of the benefit to the purpose for granting it: by setting the prize amounts as equivalent to 6 months’ and 1 year’s worth of union dues.” Id., slip op. at 4. “Finally, the raffle was announced 2 weeks before the election, and it was con- ducted just barely outside the per se objectionable 24-hour period.” Id., slip op. at 4. Needless to say, this case is in no way similar to Valmet. 13 Contrary to my colleagues’ criticism, this is not an “invitation to speculate,” but rather a valid observation about the realistic implica- tions of the Regional Director’s decision on an employer.