Champaign Residential Services

National Labor Relations Board - Board Decisions

Apr 30, 1998

325 N.L.R.B. 687 (N.L.R.B. 1998)

687
325 NLRB No. 126
CHAMPAIGN RESIDENTIAL SERVICES
1 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility findings unless a 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.
2 In adopting the recommendations that the Employer’s Objections
1, 4, 6, and 7 be overruled, we do not rely on the hearing officer’s
use of a clipboard during the hearing with reference to the ‘‘Vote
Yes!’’ petitions.
The Employer has excepted to the hearing officer’s refusal to per-
mit it to call rebuttal witnessess after both it and the Petitioner had
rested their cases. We find no merit in this exception. Of the four
witnesses the Employer sought to call, three—Jordan, Jackson, and
McFarland—had already testified and been subject to cross-examina-
tion. We agree with the hearing officer that the Employer failed to
demonstrate that recalling these witnesses would have accomplished
more than revisiting issues concerning which they had already testi-
fied, which would have contributed little, if anything, to a complete
factual record. With respect to Birch, while the Employer’s efforts
to subpoena her had been unsuccessful, the Employer had neither
called her to testify nor informed the hearing officer that she had
failed to respond to the subpoena, and had rested its case without
indicating that it wished to call her as a witness. We agree with the
hearing officer that the Employer failed to show that calling Birch
would have accomplished anything more than ‘‘rehashing’’ matters
already covered, and further, that the Employer was not prejudiced
by her failure to testify.
Champaign Residential Services, Inc. and District
1199, the Health Care and Social Service
Union, SEIU, AFL–CIO, Petitioner. Cases 9–
RC–16853 and 9–RC–16856
April 30, 1998
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FOX, LIEBMAN, AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held April 11, 1997 and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 59 for and 57 against
the Petitioner, with 8 challenged ballots, a number suf-
ficient to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted the hearing officer’s
findings1 and recommendations,2 and finds that a cer-
tification of representative should be issued.
1. The Employer excepts to the hearing officer’s
recommendation that Objections 1, 4, 6, and 7 be over-
ruled, arguing that the hearing officer erred by failing
to apply the standard for objectionable campaign prop-
aganda enunciated in Van Dorn Plastic Machinery Co.
v. NLRB, 736 F.2d 343 (6th Cir. 1984). We find that,
even under the court’s analysis in Van Dorn, the Peti-
tioner’s circulation of a flyer with 68 photocopied sig-
natures of unit employees under a heading stating in
part ‘‘We are winning! Join Us!’’ was not objection-
able. Under Van Dorn’s interpretation of Midland Na-
tional Life Insurance Co., 263 NLRB 127 (1982), the
document here does not constitute a forgery, as it was
clear from the face of the flyer that it emanated from
the Petitioner and, with one exception, the signatures
on the flyer matched those submitted by employees on
the Petitioner’s ‘‘Vote Yes!’’ petitions. Further, we
find no evidence that the flyer involved misrepresenta-
tions ‘‘so pervasive and [ ] deception so artful that em-
ployees will be unable to separate truth from untruth
. . . [so that] their right to a free and fair election
would be affected.’’ Id. at 345. In this regard, the
record shows that misrepresentations in the gathering
and compilation of the signatures were minimal. As
the hearing officer found, all employees who signed
the petition knew or should have known that their sig-
natures indicated their support for the Union and all
but two knew or should have known that their signa-
tures would be shared with other voters. We conclude
that such minor deviation from a perfect recording of
employee sentiment does not constitute the type of de-
ception which concerned the court in Van Dorn.
2. We adopt the hearing officer’s recommendation to
overrule the Employer’s Objection 5, which involved
two confrontations on the Employer’s property of the
Employer’s managers by nonemployee union organiz-
ers and their supporters in the unit. In so doing, how-
ever, we find Edward J. DeBartolo Corp., 313 NLRB
382 (1993), cited by the hearing officer, factually dis-
tinguishable from the present case. In DeBartolo the
union representative did not enter the employer’s
premises, was not asked by the employer to leave, and
the employer did not call the police to effectuate the
union representative’s removal. Hence, as the Board in
DeBartolo noted, there was no issue in that case of the
employer’s loss of control over its premises. In con-
trast, the Petitioner’s agents in the present case were
on the Employer’s property and were asked to leave.
We do, however, agree with the hearing officer that
the circumstances here are closer to those in Station
Operators, 307 NLRB 263 (1992), than to those in
Phillips Chrysler-Plymouth, 304 NLRB 16 (1991),
which the Employer argues is apposite. In Phillips,
two union representatives ‘‘repeatedly and bellig-
erently’’ refused to leave the employer’s premises
about 75 minutes before the election, after numerous
requests and demands by the employer’s president and
the police that they do so. The Board stated that,
‘‘[t]his direct challenge to the Employer’s assertion of
its property rights could not have been lost on the em-
ployees as they began to vote 75 minutes later.’’ Id.
In Station Operators, by contrast, the union’s rep-
resentatives’ three confrontations with the employer
occurred about 2 weeks before the election, lasted
about 5 minutes each, and ended when the employer
demanded that the representatives leave the premises.
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688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Here, two confrontations occurred, the first on Feb-
ruary 28, 1997, 6 weeks before the election, and the
second on March 29, 1997, 12 days before the elec-
tion. The first encounter involved an effort to persuade
the Employer to recognize the Union voluntarily.
Union Agent McFarland attempted to enter the Em-
ployer’s management offices but was stopped by a
manager in an incident lasting about 2 minutes.
McFarland promptly returned to the reception area.
The Employer asked the Union’s representatives ‘‘a
couple of times’’ within the space of about a minute
to leave the building before they did so. McFarland re-
entered the building at the request of the employees,
and left with the employees when the Employer called
a male employee to escort her from the building.
The second incident involved 15—20 employees and
two union representatives, Mott and McFarland. Dur-
ing a period of about 8 minutes, the group entered a
hallway leading to the management offices, intending
to confront the Employer with certain campaign mate-
rials, but were stopped by a manager. When the union
representatives and employees asked to speak to the
Employer’s president, Johnson, they were told that he
was not there. Before returning to the reception area,
Mott tried to give the literature to the manager, who
refused to take it. The literature dropped to the floor.
The police arrived about 5 minutes after the group re-
turned to the reception area, with Johnson arriving
about 5 minutes later. Johnson engaged in conversa-
tions with both Mott and McFarland. He asked Mott
to leave three times before asking the police to remove
him, which they did, without resistance. McFarland
spoke with Johnson for about 8 minutes. Johnson
asked her to leave about twice, and she left promptly
at the request of the police.
In the circumstances here, we agree with the hearing
officer that the conduct of the Petitioner’s agents did
not rise to the level of objectionable conduct. In so
concluding, we emphasize the distance in time the con-
duct occurred before the election, the lack of a flat re-
fusal to leave the premises or any significant resistance
by the Petitioner’s representatives, and the relatively
short intervals between the Employer’s demands that
the Petitioner’s representatives leave and their depar-
ture. In light of these facts, we find the conduct here
insufficient to warrant setting the election aside.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for District 1199, the Health Care and
Social Service Union, SEIU, AFL–CIO, and that it is
the exclusive collective-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 in Champaign and Clark Counties, Ohio,
including LPNs, relief staff, consumer assistants,
rehabilitation aides, recreational therapists, dietary
employees and cooks, but excluding all office em-
ployees, confidential employees, home super-
visors, and all guards and supervisors as defined
in the Act.
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