Care Enterprises

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 491 (N.L.R.B. 1992)

491
306 NLRB No. 87
CARE ENTERPRISES
1 In the absence of exceptions, we adopt pro forma the Regional
Director’s recommendation that the Employer’s Objection 4 be over-
ruled.
2 In its brief, the Employer relies on NLRB v. Indiana Home Sani-
tation, 803 F.2d 345 (7th Cir. 1986), enfg. 275 NLRB No. 199
(Aug. 21, 1985) (not reported in Board volume) to support its argu-
ment that the Board should order a hearing on its Objections 1 and
2 alleging that an employee union adherent engaged in surveillance
and intimidation of voters at the polling place. The Employer claims
that, based on facts identical to those in the instant case, the Board
there ordered a hearing. We find that the Employer’s counsel has
misstated the findings in that case. In Indiana Home Sanitation, the
Board did not order a hearing but, instead, adopted the Regional Di-
rector’s overruling of all the Employer’s objections. Further, in en-
forcing the Board’s Order against Indiana Home Sanitation, the
court stated (803 F.2d at 350):
[T]he company did not come forward with evidence that estab-
lished a prima facie case for setting aside the election. More-
over, it failed to raise substantial and material factual issues
since the Director accepted as true all of the evidence it offered,
even the controverted evidence. The company’s only assertion
was that the hearing should have been held in order to determine
whether the conduct it complained of had an impact on the elec-
tion. Its failure was that it could not offer any evidence that in-
dicated such an impact was likely. In the absence of this kind
of evidence, we cannot conclude that the Board’s decision to
deny a hearing was unreasonable.
In the instant case, as in Indiana Home Sanitation, the Employer
has failed to present any evidence that raises substantial and material
factual issues. Accordingly, we find that Indiana Home supports our
adoption of the Regional Director’s finding that a hearing is not war-
ranted.
3 In adopting the Regional Director’s overruling of Objection 11
alleging that the Union forged employee signatures on a campaign
document, we distinguish the instant case from Americare Pine
Lodge Nursing & Rehabilitation Center, 9–RC–15779 (May 8, 1991
unpublished) cited by the Employer in support of its contention that
a hearing should be held. In Americare, the Board reversed the Re-
gional Director and ordered a hearing because the Employer pre-
sented employee witnesses who gave affidavits that showed cir-
cumstances existed surrounding their signing the document that
raised questions concerning the authenticity of their signatures. Fur-
ther, the Union admitted that it had circulated five documents for
signatures similar to the one in issue except that they lacked the
Union’s name and insignia. The Union also admitted that employee
signatures were transferred by photocopying to make the one docu-
ment. Here, the Employer has not come forward with any such evi-
dence nor has the Union made any such admissions. Finally, in the
present case, the source of the document and its nature as union
propaganda is clear.
Member Oviatt further notes that, apart from this claimed forgery
or alteration, there is no contention that the Petitioner’s campaign
document contains a material ‘‘misrepresentation . . . so pervasive
and be unable to separate truth from untruth and . . . their right to
a free and fair choice will be affected.’’ Van Dorn Plastic Machin-
ery Co. v. NLRB, 736 F.2d 343, 348 (6th Cir. 1984). In agreeing
with the Regional Director and his colleagues that the objection
lacks merit, Member Oviatt thus finds it unnecessary to rely on Mid-
land National Life Insurance Co., 263 NLRB 127 (1982).
Care Enterprises, Inc. and Hospital & Health Care
Workers’ Union, Local 250, Service Employees
International Union, AFL–CIO, Petitioner.
Case 20–RC–16704
February 28, 1992
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held April 25, 1991, and the Regional Director’s report
recommending disposition of them.1 The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 29 for and 17 against
the Petitioner, with 8 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief,2 has adopted the Regional Direc-
tor’s findings3 and recommendations, and finds that a
certification of representative should be issued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Hospital & Health Care Workers’
Union, Local 250, Service Employees International
Union, AFL–CIO and that it is the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time service and
maintenance employees employed by the Em-
ployer at its Roseville, California place of busi-
ness, including certified nursing assistants, nursing
assistants, restorative aides, dietary employees,
housekeeping employees and laundry employees;
excluding business office clerical employees, reg-
istered nurses, licensed vocational nurses, all other
employees, guards, supervisors as defined in the
Act.