Ansted Center

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1208 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1208
Genesis Health Ventures of West Virginia, L.P., d/b/a
Ansted Center and District 1199, the Health
Care and Social Service Union, SEIU, AFL–
CIO–CLC, Petitioner. Case 9–RC–17005
September 30, 1998
DECISION AND DIRECTION
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
and objections in an election held December 19, 1997,
and the hearing officer’s report recommending disposi-
tion of them.1 The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 22 for and 17 against the Petitioner, with 7 deter-
minative challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and brief, and has adopted the hearing officer’s
findings and recommendations as modified below.2
The hearing officer found, and we agree, for the rea-
sons stated in his report, that the challenge to the ballot
of Larry Smith and the challenge to the ballot of Gay
Neal should be sustained.3 We also agree with the hear-
ing officer, for the reasons he stated, that the Employer’s
objections should be overruled.
We disagree, however, with the hearing officer’s rec-
ommendation to sustain the challenge to the ballot of
Deborah McGraw.
The parties stipulated that the appropriate bargaining
unit should include “receptionists” but exclude the
“bookkeeper/business office manager” and “all other
employees” not specifically included in the stipulated
unit.4 The hearing officer found that McGraw was a
business office clerical rather than a receptionist and
should be excluded from the unit. We disagree.

1 Pertinent portions of the hearing officer’s report are attached as an
appendix.
2 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation that the challenges to the ballots of Marvin Set-
tle, Mary Brown, Amy Linkenhoker, and Betty Kincaid be overruled
and that these ballots be opened and counted.
3 We find it unnecessary to rely on the hearing officer’s statement
concerning Smith’s transfer after the election (last sentence of par. 10
in the section entitled “The Challenge to the Ballot of Larry Smith”).
Incidents which took place after the election have no bearing on
Smith’s eligibility to vote.
4 The parties executed a Stipulated Election Agreement which de-
scribed the appropriate bargaining unit as follows: “All full-time and
regular part-time service and maintenance employees employed by the
Employer at Ansted Center, including restorative nursing assistants
(RNAs), geriatric nursing assistant specialists, certified nursing assis-
tants, dietary aides, cooks, the assistant dietary manager, laundry aides,
housekeeping aides, the ward clerk, receptionists, the activities director
and the maintenance director, but excluding the administrator, director
of nursing, dietary manager, bookkeeper/business office manager,
housekeeping/laundry supervisor, registered nurses (RNs), licensed
practical nurses (LPNs), physical therapy and team rehab employees,
the social services/admissions coordinator, all other employees, and all
professional employees, guards and supervisors as defined in the Act.”
It is well settled that in stipulated unit election cases
the Board’s function is to ascertain the parties’ intent in
regard to the disputed employees and then to determine
whether such intent is inconsistent with any statutory
provision or established Board policy. Viacom Cablevi-
sion, 268 NLRB 633 (1984). Where the parties’ intent is
clear and does not contravene any statutory provision or
Board policy, the Board holds the parties to their agree-
ment. Id. Only where the objective intent is unclear or
the stipulation ambiguous does the Board consider com-
munity of interest principles to determine whether the
disputed employee belongs in the unit. Lear Siegler,
Inc., 287 NLRB 372 (1987).
Here, the stipulated unit to which the Petitioner volun-
tarily agreed plainly includes “receptionists.” We agree
with the hearing officer that this is clear and unambigu-
ous. We do not agree with the hearing officer, however,
that because McGraw performs tasks that “cross the tra-
ditional lines of classification” she should be excluded
from the unit.
We find, instead, that McGraw is a dual-function em-
ployee who performs both unit work and nonunit work.
“The test for determining whether a dual-function em-
ployee should be included in a unit is ‘whether the em-
ployee [performs unit work] for sufficient periods of time
to demonstrate that he . . . has a substantial interest in the
unit’s wages, hours, and conditions of employment.’”
Air Liquide America Corp., 324 NLRB 661, 662 (1997),
quoting Berea Publishing Co., 140 NLRB 516, 518–519
(1963).
Applying that test, we find that McGraw should be in-
cluded in the unit. The Employer’s job description for the
receptionist position begins as follows:

POSITION SUMMARY: The Receptionist is respon-
sible for operation of the switchboard and paging sys-
tem. He/she answers all incoming calls, redirecting
them as needed. The Receptionist greets visitors and
gives directions to customers, visitors and guests, and
supports clerical activities.

Other responsibilities listed for the receptionist include pre-
paring and distributing timecards, arranging appointments
and travel reservations, ordering supplies, compiling reports
and typing general or technical material, maintaining current
lists of customers and personnel, and coordinating outgoing
and incoming mail. McGraw testified that she performs
each of the tasks listed above, and her uncontroverted testi-
mony establishes that she performs receptionist duties for at
least 22 to 24 hours of her 32-hour workweek. Monday
through Thursday, McGraw is the primary person responsi-
ble for greeting visitors, answering phones, and delivering
the mail. Amy Linkenhoker, who is a part-time receptionist
substitute for McGraw on Friday and Saturday, has been
found to be in the unit. Although McGraw also prepares the
payroll, processes invoices, works on the accounts payable,
and processes the paperwork and forms associated with pay,
326 NLRB No. 116
ANSTED CENTER 1209
benefits and personnel matters, her testimony indicates that
she spends only 4-5 hours a week on bookkeeping, about
the same on typing, and spends the rest of her time answer-
ing the phones, distributing faxes, and transmitting mes-
sages from doctors and hospitals.
We conclude that Deborah McGraw is a dual-function
employee who spends a substantial portion of each work-
ing day performing stipulated unit work. Because
McGraw regularly performs unit work for sufficient pe-
riods of time to demonstrate that she has a substantial
interest in the unit’s wages, hours, and conditions of em-
ployment, she is properly included in the unit. Air Liq-
uide America Corp., supra; Oxford Chemical, Inc., 286
NLRB 187 (1987). Accordingly, we shall overrule the
challenge to Deborah McGraw’s ballot and shall direct
that her ballot be opened and counted.
DIRECTION
IT IS DIRECTED that the Regional Director for Region 9
shall, within 14 days from the date of this Decision and
Direction, open and count the ballots of Marvin Settle,
Mary Brown, Amy Linkenhoker, Betty Kincaid, and
Deborah McGraw, serve on the parties a revised tally of
ballots, and issue the appropriate certification.
APPENDIX
HEARING OFFICER’S REPORT AND
RECOMMENDATIONS TO THE BOARD
The Challenge to the Ballot of Larry Smith
The Petitioner challenged the ballot of Larry Smith on the
basis that he did not work sufficient hours to be considered a
regular part-time employee and is a casual, on-call employee
not included in the bargaining unit. The Employer takes the
position that Smith is a regular part-time employee and is there-
fore eligible to vote in the election.
Administrator Kevin Crickard testified that, prior to March
1997, Larry Smith was a maintenance employee at a facility
operated by the Employer in Williamsburg, Virginia. This
facility was referred to on the record as “Piedmont.” Crickard
testified that Smith had been used “off and on” in maintenance
for years. Crickard hired Smith as a maintenance helper to
assist Maintenance Director Marvin Settle on special projects
and to perform electrical maintenance and installation work that
Settle was unable to perform. Smith began working on March
3. Smith, a certified electrician, was primarily responsible for
the electrical installation of fans throughout the facility, a walk-
in freezer, electrical heaters and a compressor. Crickard testi-
fied that Smith could perform electrical work at an hourly rate
that was cheaper than hiring an outside contractor. Crickard
scheduled Smith to work and Smith reported directly to him.
On various occasions from March through December, Crickard
loaned Smith to a facility operated by the Employer in Hilltop,
West Virginia. This facility was referred to on the record as
Hilltop. Smith took his timecard to Hilltop and the hours he
worked there would be marked accordingly. Those hours were
entered on computer payroll summaries called cost center re-
ports. The cost center reports in the record show that Smith’s
Hilltop hours were billed back to the Ansted, West Virginia
facility involved herein, which will be referred to where appro-
priate as Ansted. Smith is designated as a “maintenance
helper/maintenance assistant” on his timecards and the cost
center reports.
Maintenance Director Settle testified repeatedly that he was
the only employee in the maintenance department and that he
had no direct responsibility for work performed by Smith. In
addition to the duties described by Crickard, Settle testified that
Smith also hung wallpaper, a task that Settle was unable to
perform. Settle testified that he believed Smith contracted for
the wallpaper job. However, Crickard credibly testified that
Smith was paid at an hourly rate for all work performed at An-
sted. Settle further testified that Smith performed other work,
such as painting and minor plumbing repairs, that Settle could
perform. Smith was available to cover for Settle during a week
in March when Settle was off for surgery and during a week
vacation period in July. Settle testified that Smith performed
his duties in his absence.
Evidence was presented which suggests that Smith was en-
gaged in contract-type work outside the scope of the bargaining
unit. Smith was hired to perform special projects that required
skills that Maintenance Director Settle did not possess. These
skills included advanced electrical knowledge and wallpapering
expertise. Despite the fact that Settle, an eligible employee,
was unable to perform these functions, they are clearly within
the realm of maintenance work. Moreover, Smith is described
on payroll records as a “maintenance helper/maintenance assis-
tant.” The appropriate bargaining unit agreed to by the parties
specifically includes “maintenance employees.”7 Accordingly,
I find that Smith, if found to be a regular part-time employee, is
a maintenance employee properly included in the unit.
Payroll records establish that Smith worked 268.75 hours at
Ansted, 182.5 hours at Hilltop and 48.5 hours at Piedmont be-
tween his hire on March 3 and the eligibility date of November
23, a period of 38 weeks. The total hours for all locations aver-
age slightly more than 13 hours per week. There were numer-
ous weeks, or parts of weeks, during which Smith was not em-
ployed at Ansted, Hilltop, or Piedmont. Smith continued to be
listed on the Ansted payroll cost center reports. Administrator
Crickard testified that he granted Smith a leave of absence that
began on September 26. Smith did not offer, and Crickard did
not request, a reason for the absence or a date when Smith
would return to employment. Other than this occurrence, there
is no other evidence regarding Smith’s absences. In late Octo-
ber, Smith contacted Crickard and offered to return to work. In
the 6 weeks prior to his leave of absence, Smith worked 182.5
hours at Hilltop and only 14.5 hours at Ansted. Upon his return
to employment on October 27, Smith worked 67.5 hours exclu-
sively at Ansted until December 19, the date of the election.
Crickard testified that, a couple of days after the election, he

7 In resolving challenges to the ballots of disputed employees in
elections in which the appropriate bargaining unit is stipulated by the
parties, the Board will look to whether the parties clearly intended to
include or exclude the category of employee in issue. S & I Transpor-
tation, Inc., 306 NLRB 865 (1992); Southwest Gas Corp., 305 NLRB
542 (1991); Viacom Cablevision of San Fransisco, 268 NLRB 633
(1984). This is because a “Stipulated Election Agreement is a binding
contract to which the parties will be held, and that if the unit description
of that agreement is expressed in clear and unambiguous terms, the
Board will not examine extrinsic evidence to determine the parties’
intent regarding bargaining unit composition.” Laidlaw Transit, Inc.,
322 NLRB 895 (1997); Gala Food Processing, 310 NLRB 1193
(1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1210
granted Piedmont’s request that Smith return to employment at
that facility. Following the election, Smith worked 8 hours
each on January 1 and 17, 1998. It is not clear whether Smith
had officially transferred to Piedmont by that time or whether
he was on loan. Smith has not returned to work at Ansted and
did not testify at the hearing.
As previously stated, the rule to determine the eligibility of a
casual, on-call employee is whether the employee worked an
average of 4 hours per week in the 13 weeks preceding the
eligibility date. Davison-Paxon Co., [185 NLRB 21 (1970)].
Between August 24 and November 23, the 13 weeks preceding
the eligibility date, payroll records show that Smith worked
34.5 hours at Ansted for an average of 2.7 hours per week.
Accordingly, Smith did not work sufficient hours to be classi-
fied as a regular, part-time employee.
In its brief, the Employer argues that the eligibility formula
should include the hours Smith worked at all facilities operated
by the Employer and not just the hours worked at the site where
the bargaining unit is located. Golden Fan Inn, 281 NLRB 226
(1986), cited in support thereof. In Golden Fan Inn, the main-
tenance employees in question were new hires challenged as
temporary employees. The facts in the case did not clearly
indicate whether the employees worked in the bargaining unit
or were employed at other sites owned by the employer. The
Board found evidence that the disputed employees worked in
the bargaining unit and concluded that it was irrelevant whether
they had also worked at other facilities. The eligibility rule in
Davison-Paxon Co. was not utilized by the Board in Golden
Fan Inn.8 In the instant case, Smith is not a new hire and has a
clear history of employment preceding the eligibility date. The
issue is not whether he is employed in the bargaining unit but
whether he worked sufficient hours in the bargaining unit to
warrant inclusion. Under these circumstances, I find, contrary
to the Employer, that the Board did not intend the eligibility
rule in Davison-Paxon Co. to be modified by Golden Fan Inn
to include hours worked by an employee in different bargaining
units at other facilities operated by the same employer.9 Ac-
cordingly, I find that only those hours worked at Ansted are
relevant to the application of the eligibility rule in Davison-
Paxon Co.
The Employer also argues that Smith’s 4-weeks’ leave of ab-
sence in September and October should be excluded from the
time period used to compute his eligibility. Pat’s Blue Ribbons
& Trophies, 286 NLRB 918 (1987), cited in support thereof. In
that case, an employee went on maternity leave and returned 9
months later just prior to the eligibility date. Because of her
leave status, the Board examined the employee’s “preleave [sic]
and reemployment hours and her compensation” to determine
her eligibility. Pat’s Blue Ribbons & Trophies, supra at 919.
The employee worked 248 hours in the 2 months prior to her
leave and 43 after her return to work for a 9-week average of at
least 32.3 hours per week. Under these circumstances, the
Board concluded that she was a regular part-time employee
under Davison-Paxon Co. In contrast, the Board applied the

8 The Board does not strictly apply the eligibility rule in Davison-
Paxon Co. to new employees hired in the quarter preceding the eligibil-
ity date. Modern Food Market, 246 NLRB 884 (1979).
9 Smith was challenged as a casual, on-call employee. Based upon
the application of the eligibility rule in Davison-Paxon Co. and my
findings herein, I have not considered Smith’s eligibility as a dual
function employee. Fleming Industries, 282 NLRB 1030 (1987), and
cases cited therein.
same reasoning to another employee on maternity leave who
worked 4.5 hours in the 2 months prior to her leave and 14.5
hours upon her return and concluded that she was ineligible to
vote.
The Board’s holding in Pat’s Blue Ribbons & Trophies sug-
gests that some accommodation may be made for a leave of
absence. However, it does not appear to establish a hard, fast
rule for the mathematical application of the eligibility formula
in Davison-Paxon Co. If, like in Pat’s Blue Ribbons & Tro-
phies, the hours Smith worked in the 2 months prior to his leave
on September 26 are included with his hours between his return
to work on October 27 and the eligibility date, Smith worked a
total of 42.25 hours in 11 weeks for an average of 3.8 hours per
week. If the 4 weeks’ leave of absence is excluded from the
time period used to calculate eligibility and the time period is
extended back an additional 4 weeks to July 27, Smith worked
a total of 42.25 hours in 13 weeks, for an average of 3.25 hours
per week. If the leave of absence is merely excluded and
Smith’s 34.5 hours are divided by only 9 weeks, the average
per week is 3.8 hours. Under any of these more liberal applica-
tions, Smith failed to work the 4 hours per week minimum
established by the eligibility rule in Davison-Paxon Co.10
Smith’s status as a casual, on-call employee is supported
elsewhere in the record. Maintenance Director Settle did not
consider Smith to be a regular employee in the maintenance
department. Although Smith’s duties included maintenance
work, he was primarily hired to complete special projects that
required his particular expertise. These projects, wallpapering
and electrical installations, by their nature were of limited dura-
tion. Throughout his employment, Smith floated freely be-
tween Ansted and Hilltop. His leave of absence, which was
without specific duration and granted without question, came
after he had not had significant employment at Ansted in at
least six weeks. Instructive, if not controlling, is the fact that
Smith was loaned to Piedmont almost immediately following
the election and worked only 16 hours at Ansted in the next 4
weeks while permanently transferring to Piedmont.
Accordingly, I conclude that Smith is a casual, on-call em-
ployee and not eligible to vote in the election. I therefore rec-
ommend that the Board sustain the challenge to the ballot of
Larry Smith and that it be neither opened nor counted.
The Challenge to the Ballot of Deborah McGraw
The Petitioner challenged the ballot of Deborah McGraw on
the basis that she is a bookkeeper, a classification excluded
from the bargaining unit. The Employer takes the position that
McGraw is a receptionist included in the bargaining unit and is
therefore eligible to vote in the election.
McGraw testified that she works 32 hours per week, Monday
through Thursday at a desk with a glass partition near the en-
trance to the facility. Her desk is adjacent to the office of
Bookkeeper/Business Office Manager Beverly McCutcheon,
which is likewise adjacent to the office of Administrator Kevin
10 In Trump Taj Mahal Associates, supra, Board Member Rauda-
baugh posited that application of the eligibility rule in Davison-Paxon
Co. did not establish a per se showing of regularity of employment and
community of interest. The Board disagreed. Although the rule may
be viewed as substituting rote mathematics for reasoned judgment, it
offers the parties a clear, bright line that permits “optimum employee
enfranchisement and free choice, without enfranchising individuals
with no real continuing interest in the terms and conditions of employ-
ment.” Trump Taj Mahal Associates, supra at 296.
ANSTED CENTER 1211
Crickard. Her nametag, which she sometimes wears, desig-
nates her as “receptionist/personnel.” She is listed as “Book-
keeper/Personnel” on the Employer’s monthly newsletter.
McGraw typed an internal memorandum concerning a discipli-
nary investigation of an employee and designated her position
as “Payroll/Benefits/Personnel.” She is classified on the Em-
ployer’s payroll cost center reports as “Manager-Personnel
Ctrs” and receives a wage of $10.61 per hour, slightly higher
than the $10.59 per hour received by McCutcheon.
McGraw testified that she performed most, if not all, of the
tasks outlined in the job description for a receptionist. She
operates the switchboard and paging systems, takes incoming
calls, greets visitors, coordinates and distributes mail and time-
cards, orders supplies, sets up appointments for Administrator
Crickard, and performs other clerical support work. In addition
to these duties, McGraw also testified that she is responsible for
preparing the payroll sheets, works on the accounts payable,
prepares invoices and types memoranda and letters for depart-
ment heads and supervisors. She is primarily responsible for
the Employer’s benefits program and is called upon to explain
those benefits to employees in staff meetings. McGraw an-
swers inquiries from employees regarding their pay and bene-
fits, puts through changes in payroll direct deposit, and keeps
track of vacation and attendance records. McGraw, along with
department heads and the bookkeeper/business office manager,
has complete access to the personnel files of all employees for
purposes of filing and record keeping. Additionally, she occa-
sionally attends department head meetings when benefits or
personnel policies are discussed. There is no evidence that she
formulates those policies.
The bargaining unit agreed to by the parties specifically in-
cludes “receptionists” and excludes the “bookkeeper/business
office manager” and “all other employees” not included in the
bargaining unit. The unit specifically names various classifica-
tions included and excluded from the unit, but makes no men-
tion of office clerical employees in general. At first blush, it
might appear that the stipulated bargaining unit is ambiguous or
unclear.11 However, I do not find that to be the case. As a
general rule, business office clerical employees are excluded
from customary service and maintenance units. Rhode Island
Hospital, 313 NLRB 343, 359 (1993); Mercy Hospitals of Sac-
ramento, 217 NLRB 765, 770 (1975). However, receptionists
have been included in health care service and maintenance units
where they do not perform distinct business office duties such
as handling finances, billing and extensive personnel functions.
Lincoln Park Nursing & Convalescent Home, [318 NLRB
1160, 1164 (1994)]; Charter Hospital of Orlando South, 313
NLRB 951 (1994). Moreover, the phrase “all employees” has
been found to be of sufficient clarity to warrant unit placement.
Laidlaw Transit, Inc., supra. The stipulated unit herein does
not expressly include or exclude classifications that would
clearly violate Board policy or the Act. The parties have pre-
sented no evidence that the unit does not reflect their agree-
ment. It is, therefore, clear and unambiguous.

11 Extrinsic evidence that the intent of the parties is unclear might be
gleaned from the fact that the Petitioner, for various reasons, challenged
the ballot of every voter who could arguably be a receptionist and the
Employer now argues that every clerical but the bookkeeper/business
office manager is merely a receptionist. Regardless of these divergent
positions, the Board will not examine extrinsic evidence if the unit is
expressed in clear and unambiguous terms. Gala Food Processing,
Inc., supra, and fn. 6, above.
The question is whether McGraw is a receptionist included
in the unit or a business office clerical excluded with “all other
employees.” McGraw performs many receptionist duties in-
cluding answering the phone, delivering the mail, greeting visi-
tors and typing correspondence. The fact that McGraw per-
forms these duties in addition to others, is not persuasive. The
60-bed facility involved herein is among the smallest of the
approximately 250 facilities operated by the Employer. It is not
unusual in these circumstances that an employee performs tasks
that cross traditional lines of classification. However, McGraw
also prepares the payroll, processes invoices and works on the
accounts payable. She processes most, if not all, of the paper-
work and forms associated with pay, benefits and personnel
matters. Except for her nametag, McGraw is not designated as
a “receptionist” on any other document on the record. Most
significantly, McGraw is classified on payroll records as the
“Manager-Personnel Ctrs” and is paid on par with other man-
agers far above the rate paid to Receptionist Linkenhoker. In
view of the evidence when taken as a whole, I conclude that
McGraw is not a receptionist but is a business office clerical
properly excluded from the bargaining unit. Lincoln Park
Nursing & Convalescent Home, supra at 1164.
Accordingly, I conclude that McGraw is a business office
clerical properly excluded from the bargaining unit and not
eligible to vote in the election. I therefore recommend that the
Board sustain the challenge to the ballot of Deborah McGraw
and that it be neither opened nor counted.
The Challenge to the Ballot of Gay Neal
The Petitioner challenged the ballot of Gay Neal on the basis
that she is a supervisor at the Employer’s Hilltop facility and/or
that she is a bookkeeper, a classification excluded from the
bargaining unit. The Employer takes the position that McGraw
is a regular part-time receptionist included in the bargaining
unit and is therefore eligible to vote in the election.
Called by the Petitioner, Gay Neal testified that she is em-
ployed full time at the Employer’s Hilltop facility as a data
processor. In August 1997 she began working at the Em-
ployer’s Ansted facility to earn extra income. Neal is able to
set her own schedule on the weekends but primarily works on
Saturday. Neal testified that she works in the office of the
bookkeeper/business office manager where she has access to
McCutcheon’s computer. Neal requires access to the terminal
in order to “back up the computer.” This involves retrieving
patient care information from three network computers at the
facility, organizing the information, inputting the information
on the facility’s network file server and creating a backup tape
of the inputted information to protect against data loss. Neal
testified that she cannot leave the computer while doing the
backup because someone could log-in and the files would be
lost. Neal testified that her responsibilities include patient bill-
ing and that she has access to patient billing files. According to
Neal, her primary responsibility is to complete tasks assigned to
her by McCutcheon, including computer backup and billing.
Neal stated that McCutcheon would finish any work that Neal
was unable to complete. Neal also testified that she answered
telephones, did filing and assisted visitors.
Neal’s testimony was somewhat confused. On direct exami-
nation, Neal testified that she spent the majority of her time
backing up the computer. On cross-examination, she testified
that 80 percent of her time was spent on receptionist duties and
20 percent on patient billing. When I attempted to clarify the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1212
record, Neal explained that she spent a majority of her time
backing up the computer, but only on the days when McCutch-
eon instructed her to back up the records. On cross-exam-
ination, Neal stated that she was not sure why the Employer’s
records listed her as a medical records clerk, and then went on
to describe how she inputted patient medical records into the
computer network. Neal testified that she and receptionist
Linkenhoker worked together on Saturdays on overlapping
shifts. Neal works in McCutcheon’ office. Linkenhoker works
at the desk normally occupied by Deborah McGraw which is
adjacent to McCutcheon’s office. By the time of the hearing,
Neal and Linkenhoker had worked together for almost 3
months. However, upon repeated questioning, Neal was unable
to describe what Linkenhoker did during the day.
Administrator Crickard testified that he determined there was
a need for a receptionist on Saturdays to answer the phones,
take messages, greet visitors and be available in the business
office. Around early August, he arranged for Neal to work a
weekend schedule at Ansted. In November, Crickard again
assessed the situation and hired Linkenhoker to serve, accord-
ing to Crickard, as the primary receptionist on Fridays and a co-
receptionist on Saturday. The record reflects that there contin-
ues to be no receptionist on Sundays. Instead, managers and
supervisors on the weekend rotation are responsible for answer-
ing the phone, taking messages and greeting visitors.
According to the Employer’s payroll cost center reports,
Neal is a medical records clerk earning $7.56 per hour. The
hours Neal works at Ansted are billed to Hilltop. Her paycheck
and W-2 forms designate Hilltop as her employer. The Em-
ployer’s payroll records for the period August 24 to November
23 show that Neal worked 47.75 hours at Ansted.
The record contains no evidence whatsoever that Neal per-
forms supervisory duties at Ansted or Hilltop. I do not con-
clude that Neal is ineligible to vote in the election on the basis
that she is a supervisor.
As with the challenge to the ballot of Deborah McGraw, the
threshold issue is whether Neal is a receptionist and included in
the unit or a business office clerical and ineligible to vote. I
credit Neal’s testimony that she spends most of her time in
McCutcheon’s office backing up the computer or completing
other assignments normally performed by the bookkeeper/
business office manager. These assignments include patient
billing and organizing patient medical records. As with
McGraw, I am sure that Neal has found it necessary on occa-
sion to answer phones, take messages and greet visitors. How-
ever, I conclude that Neal spends very little time performing
these functions. Most of her day is spent in the business office
and she is unable to leave the computer terminal when backing
up records. Other evidence further supports the fact that Neal
is not a receptionist. Crickard’s testimony that both Neal and
Linkenhoker are Saturday receptionists is not substantiateded
by the facts. When taken as a whole, Neal’s testimony supports
that she was hired to assist McCutcheon in the completion of
her bookkeeper/business office manager duties and, secondar-
ily, to perform receptionist duties as needed. When it became
apparent to Crickard that McCutcheon and Neal were to busy to
adequately perform receptionist duties on Fridays and Satur-
days, he hired Linkenhoker to fill the gap. The fact that Link-
enhoker performs receptionist duties and Neal does not is sub-
stantiated by the fact that Neal does not know what duties
Linkenhoker performs during the day. This is not because Neal
is inattentive. It is because she is working in McCutcheon’s
office and focused on her business office clerical duties. Fi-
nally, I note that Neal is classified as a medical records clerk by
the Employer and that her wages at Ansted are 32-percent
higher than Linkenhoker’s.
For the reasons set forth above, I conclude that Neal is not a
receptionist but a medical records clerk and therefore a business
office clerical properly excluded with “all other employees”
from the bargaining unit. In the event Neal is found to be a
receptionist and included in the unit, the record established that
Neal worked 47.75 hours at Ansted during the 13 weeks pre-
ceding the eligibility date for an average of 3.7 hours per week.
Accordingly, Neal is a casual, on-call employee and should
likewise be excluded on that basis. Davison-Paxon Co. supra.12
I therefore recommend that the challenge to the ballot of Gay
Neal be sustained and that it be neither opened nor counted.
III. THE OBJECTIONS
The Employer’s Objection 1
This objection alleges that the Petitioner encouraged a plan
by prounion employees to intentionally call off sick in order to
disrupt the Employer’s operations and to require employees
who did not support the Petitioner to work mandatory overtime.
In support of this objection, the Employer presented the tes-
timony of Administrator Kevin Crickard. Crickard testified
that the Employer has a mandatory overtime system called the
“star system.” Employees on a particular shift receive a star by
their name on the work schedule that designates them as the
employee who will be required to work an additional shift if an
employee “calls off” and is absent. The star rotates daily from
one employee to the next. For example, if there are 10 employ-
ees on a shift, then an employee would only be starred every
tenth day. The star system is for mandatory overtime only.
Employees can volunteer for the shift, thereby relieving the
starred employee of their obligation for that day.
The Employer presented Evelyn Briles, certified nursing as-
sistant, as a witness in support of this objection. On November
26 following the employee meeting described fully in Em-
ployer Objection 9, Briles rode with an employee to Gino’s
Restaurant in Ansted, West Virginia. When they arrived at
Gino’s, Petitioner Organizer McFarland was in the banquet
room with employees eating pizza and drinking sodas.13 Other
employees later joined the group. The meeting was very in-
formal. Employees sat at different tables and McFarland
moved among them, sitting and chatting. The employees dis-
cussed various subjects, both personal and work related. Briles
testified that a few employees expressed their satisfaction that
Crickard had been upset when McFarland came to the em-
ployee meeting held earlier that day. Briles did not recall the
identity of these employees. Briles stated that an employee
made a comment that a way “to further agitate certain employ-
ees that were not supportive of the Union would be to call off
on their star day.” Briles could not recall the identity of the
employee who made this statement. Briles testified that
McFarland heard the comment and stated, “[Y]es, that would
be great, but what kind of problem would that create at work all

12 The record shows that Neal is “loaned” to Ansted from Hilltop and
she might be considered a dual-function employee. Fleming Industries,
supra. Because Neal is ineligible on other grounds, I have not examined
heer potential status as a dual-function employee.
13 I find that McFarland is a responsible agent of the Petitioner under
Sec. 2(13) of the Act.
ANSTED CENTER 1213
the way around?” Briles did not recount the employees’ re-
sponse to McFarland’s question. According to Briles, various
unidentified employees at the gathering stated at some point
that they would target Rhonda Wilson, Rachel Willis, and April
Haynes for calling off work.
On cross examination, Briles testified that she attended three
“formal” union meetings conducted by McFarland. At those
meetings, McFarland told employees to work their schedules as
much as they could because it would cause problems at work if
employees called off work.14 She further testified that, at the
meeting at Gino’s, McFarland did not directly instruct employ-
ees to call off work.
The Employer introduced into evidence a chart which lists
all of the incidents where employees called off work between
November 30 and December 17. The chart designates employ-
ees as supporters or nonsupporters of the Petitioner based upon
whether the Employer saw them wear union buttons during the
campaign. Sixteen incidents were cited where employees
called off work. Of those, 11 involved voluntary overtime and
only 5 incidents involved the use of the star system. Of those
five, one incident involved a “pro-union” employee calling off
which resulted in a “non-union” employee being required to
work and another incident involved a “non-union” employee
calling off which resulted in a “pro-union” employee being
required to work. The remaining three incidents of mandatory
overtime involved both “non-union” employees or “pro-union”
employees.
The Employer also requested that I take administrative no-
tice of an unfair labor practice charge in Case 9–CB–9564–3, in
which it was alleged that the Petitioner engaged in similar con-
duct with another employer. I have taken administrative notice
of the charge and find that the charge was withdrawn prior to
issuance of complaint.
Based upon the foregoing evidence presented by the Em-
ployer, I conclude that the Employer has not established that
the Petitioner engaged in objectionable conduct. Briles’ testi-
mony was spotty at best. This is not surprising since the scene
at Gino’s was one of numerous employees moving about, eat-
ing, drinking and discussing a myriad of subjects all at the same
time. It was far more an informal lunch party than a meeting.
The Employer’s best evidence is that, in response to a sugges-
tion by an unidentified employee that employees could agitate
non-union employees by calling off on their star day, McFar-
land acknowledged the statement but then asked what problems
it would cause. Briles did not recount any more of the conver-
sation that would shed further light as to McFarland’s concerns.
However, Briles’ further testimony clearly shows that, on other
occasions, McFarland told employees to work their schedules
as best they could. Moreover, the chart introduced by the Em-
ployer shows that there was only 1 incident out of 16 that could
even arguably support its objection. Accordingly, there appears
to be no probative evidence whatsoever to support the
Employer’s Objection 1.
I therefore recommend that the Board overrule the Em-
ployer’s Objection 1 in its entirety.
The Employer’s Objection 6
In support of this objection, the Employer presented Rhonda
Wilson as a witness. Wilson testified that she is a geriatric

14 The Petitioner presented witnesses that corroborated that McFar-
land, at various times, instructed employees not to call off work without
a legitimate reason.
nursing assistant specialist and has been employed by the Em-
ployer for nine years. Wilson testified that, on or about No-
vember 16, she was having a conversation with Rachel Willis.
Willis is also a geriatric nursing assistant specialist employed
by the Employer and a close friend of Wilson. Wilson states
that Willis told her that “when the Union went through I would
be one of the first ones they got rid of” and that “there was a lot
of Union people saying that.”
The Petitioner called Rachel Willis as a witness. Willis testi-
fied that she was not involved in the Petitioner’s campaign and
engaged in no activities in support of the Petitioner other than
to attend one meeting. Willis testified that, on or about No-
vember 16 in a conversation with Wilson, she told Wilson that
“if the Union came in she might be one of the first ones to lose
her job.” Wilson asked Willis what she meant. Willis replied
that “we might all be hunting jobs before this thing is over.”
Wilson testified that she made the statements concerning job
loss based upon unsubstantiated rumors she had heard. Willis
testified that no official of the Union, including Petitioner Or-
ganizer McFarland, ever told her that any employee would lose
their job if the Union came in.
The evidence presented is nothing more than a conversation
and conjecture between two employees. There is no evidence
that the Petitioner encouraged, authorized or condoned the
statements made by Willis. There is no evidence whatsoever
that the Petitioner threatened an employee with loss of em-
ployment for any reason.
I therefore recommend that the Board overrule the Em-
ployer’s Objection 6 in its entirety.
The Employer’s Objection 9
In support of this objection, Administrator Kevin Crickard
testified that on November 11 he entered the facility and found
Petitioner Organizer McFarland standing in the lobby area with
a group of employees and their children. McFarland introduced
herself to Crickard and offered to shake hands. Crickard re-
fused and asked McFarland to leave the facility because she
was trespassing. The conversation took about 30 seconds.
Crickard then called the police to have McFarland removed.
McFarland remained in the lobby for about an hour until the
police arrived. Crickard testified that the group was not loud or
rowdy and did not chant or clap hands. When the police ar-
rived, they asked McFarland to leave and she did so immedi-
ately.15
Administrator Crickard further testified that on November 26
he conducted a mandatory staff meeting for all employees in
the dining room at the facility. Employees not scheduled to
work were required to attend the meeting. Approximately 45
employees were present. Crickard stated that at about 5 min-
utes into the meeting he heard some “commotion” in the back
of the room and saw Petitioner Organizer McFarland “forcing
her way into the meeting.” Crickard testified that he saw
McFarland enter the rear of the dining room with around 10
employees. Chez Cepolla, a labor relations consultant for the
Employer, was standing at the entrance. Crickard testified that
he watched McFarland “push her way into him and by him and
through him into the room.” According to Crickard, McFarland
was “loud and disruptive” and “immediately took over and
15 This incident occurred prior to the filing of the petition and thus
falls outside the critical period for objectionable conduct. I recount the
incident here only because the Employer presented it in support of its
allegations of objectionable conduct that occurred on November 26.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1214
started saying that she’s here to represent the employees” and
that she wanted “to discuss issues.” Crickard asked McFarland
to leave and, according to Crickard, McFarland replied, “[N]o,
I’m not going to leave.” Crickard replied, “[T]his meeting is
over” and canceled the meeting. McFarland then left with
some of the employees and did not return to the facility until
the date of the election. The conversation between Crickard
and McFarland lasted about 30 seconds. Employees began
arguing with each other, some loudly, over whether McFarland
had a right to be there. The entire incident took around 2 or 3
minutes. Crickard testified that he had previously instructed
the charge nurses to call the police if McFarland entered the
facility. The police were apparently called but McFarland had
already left the facility. Crickard testified that he reconvened
the meeting about 10 to 15 minutes after the incident. Fewer
employees attended the second meeting because some employ-
ees had left the facility when the first meeting was cancelled.
Crickard testified that, following the incident of November
26, the Employer continued with its election campaign and
distributed literature, showed videos and conducted small group
meetings with employees.
The Employer presented Evelyn Briles, certified nursing as-
sistant, as a witness concerning the November 26 meeting.
Briles testified that McFarland, accompanied by some employ-
ees, arrived around 5 minutes after the meeting started. Some
of the employees with McFarland passed out doughnuts.
McFarland told Crickard that she wanted to talk about “certain
issues concerning the Union and hopefully to have a chance to
clear up some of the differences between the non-Union em-
ployees and the Union employees.” Some of the employees
became upset and Crickard immediately asked McFarland to
leave. After a brief exchange between Crickard and McFar-
land, Crickard asked someone to call the police and McFarland
left the room.
The Petitioner presented various witnesses in rebuttal, in-
cluding Mae Ross, Ida Bragg, and Daniel Gill. The only sig-
nificant new fact introduced is that Gill and Bragg testified that
McFarland was told by Chez Cepolla before entering the dining
room that she was not supposed to be there, that she was tres-
passing and would have to leave. Other than that, their testi-
mony concerning the facts of the November 26 meeting essen-
tially corroborate the facts as presented by Crickard and Briles,
but without the hyperbole supplied by Crickard. No other wit-
ness testified that McFarland was loud, pushy, forceful or dis-
ruptive although I am sure that was the conclusion reached by
Crickard, who, during testimony, remained visibly angered
concerning the incident. I credit the facts related by Crickard,
but not his characterizations of the incident.
The facts as I credit them show that McFarland entered the
dining room after being told not to by Cepolla. Her entrance
caused employees, both prounion and nonunion, to talk and
even argue about her presence at the meeting. McFarland an-
nounced that she was there as the representative of certain em-
ployees and wanted essentially to offer the Union’s side of the
story. Crickard immediately told McFarland to leave, an-
nounced that the meeting was canceled and instructed that the
police be notified and called to the scene. McFarland left the
facility and did not return. The entire incident took well under
five minutes. After 10 minutes or so, Crickard reconvened the
meeting.
It is clear that fewer employees attended the second meeting
than the first. Some employees followed McFarland to Gino’s.
Others just left. The employees did not leave the room upon
McFarland’s entrance: she did not drive them out. They left
because Crickard, regardless of the reason or justification, told
them the meeting was cancelled. Those that did not leave the
facility attended the second meeting. Others who left returned
for the meeting.
In this objection, McFarland’s conduct on November 26 con-
stitutes the single incident of alleged misconduct to be consid-
ered. McFarland’s conduct did not involve physical assault and
her brief statements were not threatening or coercive. Her con-
duct and statements cannot reasonably be found to have caused
fear among employees. Although, most of the employees in the
bargaining unit witnessed the conduct, there is no evidence that
the incident continued to be a source of debate or argument
among employees long after it occurred. The incident oc-
curred more than 3 weeks prior to the election and the Em-
ployer continued to conduct its election campaign without fur-
ther interruption or hindrance. Under these circumstances, I
conclude that McFarland’s conduct did not interfere with the
right of employees to freely and fairly exercise their choice in
the election. Avis Rent-A-Car System, 280 NLRB 580, 581
(1986).
McFarland was clearly informed that her presence at the
meeting was uninvited. However, after making her brief state-
ment, McFarland was ordered to leave and she did so almost
immediately. McFarland’s actions did not expose the Em-
ployer as powerless to defend its own property rights and were
not, therefore, inherently objectionable. Phillips Chrysler Ply-
mouth, 304 NLRB 16 (1991). I find that McFarland’s conduct
on November 26 was not objectionable and does not warrant
setting aside the election. Compare to Mediplex of Connecticut,
Inc., 319 NLRB 281, 289 (1995); Edward J. DeBartolo Corp.,
313 NLRB 382 (1993); Station Operators, Inc., 307 NLRB 263
(1992).
I therefore recommend that the Board overrule the Em-
ployer’s Objection 9 in its entirety.
IV. CONCLUSIONS AND RECOMMENDATIONS
For the reasons set forth above, I recommend that the chal-
lenges to the ballots of Marvin Settle, Mary Brown, Amy Link-
enhoker, and Betty Kincaid be overruled and their ballots be
both opened and counted. I recommend that the challenges to
the ballots of Larry Smith, Deborah McGraw, and Gay Neal be
sustained and their ballots be neither opened nor counted. I
further recommend that the Employer’s Objections 1, 6, and 9
be overruled in their entirety.16

16 The filing of exceptions hereto is governed by Sec. 102.69(f) of
the Board’s Rules which provides that they must be filed with the
Board within 14 days of the issuance of this report.