Community Hospital, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1080 (N.L.R.B. 1980)

1() DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Community Hospital, Inc. of East St. Louis and
Hospital Employees Division, Local No. 50,
Service Employees International Union, AFL-
CIO-CLC, Petitioner. Case 14-RC-9023
August 27, 1980
DECISION ON REVIEW AND
CERTIFICATION OF RESULTS OF
ELECTION
BY MEMBERS JENKINS, PENELO, ANI)
TRUESDALE
On February 8, 1980,' the Regional Director for
Region 14 issued his Supplemental Decision and
Order in the above-entitled proceeding, in which
he set aside the election held on January 17,2 on
the basis of one statement in the Employer's Janu-
ary 17 letter to employees on which he concluded
that Petitioner's objection should be sustained. 3
Thereafter, pursuant to the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended, the Employer filed a timely request for
review in which it contended that the decision on a
substantial factual issue is clearly erroneous on the
record.
By mailgram dated March 20, the National
Labor Relations Board granted the Employer's re-
quest for review (Member Truesdale, dissenting,
would have denied review).
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in
this case with respect to the issues under review
and makes the following findings:
The issue is whether in the circumstances of this
case there is such a substantial misrepresentation of
Board procedures as to warrant setting aside the
election and conducting a second election. For the
reasons set forth below, a majority of the Board
would not invalidate the election conducted on
January 17 and would certify its results.
The facts can be briefly stated. In its sole objec-
tion, Petitioner alleged that on January 17, the day
of the election, the Employer passed out campaign
literature containing several specified untrue state-
' All dales are in 198)O
Ially of hallots shoed that, of approximately b0 eligible volters. 50
ballots were carst of hich 21 were fr. and 24 against. Petitioner aild 5
ballots ere challenged rhe challenges were sufficient in number to
affect the results of the clection In the Supplemental Decision. the Re-
gionlla Direclor sustalilned the challenges to t( wo ballots, thereby rendering
the results of the electiion COIICIUlsi.e %ithout openling and counting the
ballots of the three ias to whom hi overruled the challenlges
:Irhe Regional Director found no merit in Petitioners specific allega
tions based on the mploye'. January 17 letter and overrulcd the Em-
ployer's objections based on Petitioner's campaign items to vl itch the
Employer's Januarx 17 lelltter was a response.
251 NLRB No. 149
ments. The Employer admitted drafting the letter
and placing copies at each of the eight nurses' sta-
tions in the hospital on election day, but denied en-
gaging in any conduct which would warrant set-
ting aside the election. After finding no merit in
Petitioner's specific allegations, the Regional Direc-
tor considered the letter's final paragraph, which
reads:
Please have faith and trust in this new Board
of Directors and Administration and vote
ANO!! Failure to vote is an automatic YES vote!
The Regional Director concluded that the Employ-
er's assertion, "Failure to vote is an automatic YES
vote," was a misleading representation of the
Board's processes under which the result of an
election is determined by a majority of the valid
votes cast. He deemed it possible that employees
supportive of Petitioner "would refrain from
voting, in the belief that by so refraining, they
were casting ballots in favor of representation by
the Petitioner." Inasmuch as the Employer engaged
in such conduct on the day of the election and it
appeared that approximately 10 employees did not
cast ballots, the Regional Director concluded that
this statement constituted a substantial misrepresen-
tation of the Board's processes to which Petitioner
did not have an effective opportunity to reply and
that such conduct warranted setting aside the elec-
tion involved.
In its request for review, the Employer submit-
ted that the statement on which the Regional Di-
rector based his decision to set aside the election
was merely an inartfully drafted attempt to assure
that all eligible voters voted and was not a deliber-
ate attempt to misrepresent Board procedures so
that eligible voters might be persuaded not to vote.
The Employer urges that the facts bear this out:
The statement immediately followed a plea to vote
against the Union; the entire letter was obviously
an item of campaign literature and in response to
Petitioner's campaign items which the Employer
believed to be seriously misleading and of which it
first became aware on the eve of the election. In
this context, the Employer urges that the ques-
tioned statement was nothing more than campaign
rhetoric which would easily be recognized as such
by the average employee. Further, as there is no
evidence that any employee took or refrained from
taking any action based on the letter, the Employer
submits that the statement was not such a substan-
tial misstatement of Board processes as to warrant
setting aside the election. Member Jenkins finds
merit in these contentions.
Since August 3, 1936, the Board has construed
the phrase "majority of the employees" in Section
COMMUNITY HOSPITAL., INC I ()S
9(a) as referring to the majority of the eligible em-
ployees actually voting in an election. 4 The princi-
ple that a majority of those voting determines the
issue is one which the Supreme Court had recog-
nized as the established rule as to the effect of elec-
tions, in the absence of any statutory regulation to
the contrary. 5 Those who do not participate "are
presumed to assent to the expressed will of the ma-
jority of those voting." 6 However, the Board has
not assumed that all prospective voters in Board
elections would know these principles. According-
ly, its "NOTICE OF ELECTION" Form NLRB-
707 (1-77), in stating the "PURPOSE OF THIS
ELECTION," specifically declares: "A majority of
the valid ballots cast will determine the results of
the election."
In the circumstances present here, there is no
basis for assuming that any employees were misled
by the Employer's statement or that employees
were incapable of evaluating the Employer's state-
ment for what it was-legitimate campaign propa-
ganda which, while perhaps inartfully drafted, was
in the nature of an exhortation for employees to ex-
ercise their right to vote. 7 In the absence of any
evidence that employees refrained from voting as a
result of the Employer's statement, Petitioner's ob-
jection provides no basis for invalidating the results
of the election.8 Accordingly, Petitioner's objec-
s Sec
9
(a) provides Representatives designated or selected for he
purpose of collective bargaining by the majorit of the emnplo)ees in a
unit appropriate for such purposes, shall be the exclusive representatises
of all the employees in such unit . ." The Board fully explored alter-
native constructins in RC'.4 Manufacturing Company. Inc., 2 NLRB
159. 173 179 1
9
3i). in which it decided to adopt the established rule
I Id. at 177. quoting from Countr of Cca%' v Johnlotr. 95 U S 3, 369
(1878)
s Virginian Radwar (Co. Stem Federation No. 40, Radla l Emtploc'es'
Department of lhe ,4menrcan Federartion of la. or, er al., 300O U S515 5160
561 (1937) The Board regularly uses this presumption, with judicial ap-
proval. egr. ,.LRB s Singleton Packing Corp.. 418 F.2d 275, 278 280
(5th Cir 19091. enfg 167 NI.RB 30(4 (1967). cert denied 4(0 L' S 824
(1970)
7 In Member Jenkins' opinion. I-Ornco, In-, 233 NLRB h61 1177),
cited by the Regional Director, is dlstinguishable as it insolved the calcu-
lated misrepresentation of a settlement agreement for partisan election
purposes and t is unnecessary to consider in this case the question of
"time to respond" to such a misrepresentation.
With regard to Member Pencllo's observations with respect to the
'schismatic results" between Member Truesdale and Member Jenkins, the
difference between the positions turns onl idisvidual assessments oIf the
issue at hand Such assessments are matters on which reasonable men
may differ, and different assessments. in anld of themselves. do not lead to
"decisional disarray." and the evil Member P'enlello perceives in "schis-
matic results" could only be remedied by changing traditional multi-
member courts, boards. commissions, etc.. to single-person oiperations
" Although approximately 10 eligible employees did not appear at the
polls to cast a ballot. voter participation (83 percent) in this election was
only slightly belosw the average rate of voter turnout, so that the number
of "no-shows'" is well wilhin the range of normal in Board elections
Thus. we find. contrary to oiur dissenting colleague, that it would hb un-
rea.onahl' to "conclude that employees sympathetic to Petitionller chose
not to vote in the mistaken belief that abstention frocm olting was the
equivalent of voting ')es " In any event, if we were disposed to give cre-
dence to the suggested inference that a substantial number of emploiees
could have been misled hb the Employer's literature. sc swould not set
the election aside at his time but. rather, would remand the case toi the
tion is overruled and, since Petitioner did not re-
ceive a majority of the valid votes, we shall certify
the results of the election. °
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Hospital Employees
Division, Local No. 50, Service Employees Inter-
national Uniorn, AFL-CIO-CLC, and that said
labor organization is not the exclusive representa-
tive of all the employees, in the unit herein in-
volved, within the meaning of Section 9(a) of the
National Labor Relations Act, as amended.
MEMBER PENELLO, concurring in the result:
1 join with Member Jenkins in reversing the Re-
gional Director and overruling Petitioner's objec-
tion,10 but I do so based upon the reasons set forth
in Shopping Kart Food Market, Inc., 228 NLRB
1311 (1977), the principles of which I still adhere
to. See my dissenting opinion in General Knit of
Califbrnia, Inc., 239 NLRB 619 (1978).
The case now under consideration is yet another
example of the confusion generated by the ambigu-
ous "standard" adopted in Ilollyiwood Ceramnics
Company, Inc., 140 NLRB 221 (1902), recently re-
vived by a majority of this Board in General Knit.
Indeed, two members of this Board, who uwere part
of the General Knit majority, and who now con-
sider the facts of this case, have reached diametri-
cally opposite conclusions: Member Truesdale find-
ing a substantial departure from the truth without
adequate time to reply, and Member Jenkins find-
ing just the reverse. Thus, we see the schismatic re-
sults engendered by the application of the Ilolly-
wood Ceramics-General Knit "standard" to the facts
now before us, by two members of the General
Knit majority who are in supposed agreement as to
the import of that case's precepts.
Regional Directllr fr further TicsCistigalOn to determin e licth er or not
the Itlissing 11) eCmplotsees scere ir xlere rnot sorking in the h-tspit li nd,
thus. could oir could not hart seeen the allegedlls ottIrtels, Iltc' ritUTc
Member Penello aigrees that a certification f tl rults i ppi ioprilte
herein, but does so for lte reasons et frtil i is sep.crate concilrrilig
opnlin
" Ilhe facts herein are relaliscl stlr.ighilftrar d ''ctollrl-t' solc oh
jection conllcerns .a campaign leaflet distributed by the Eniplis er n the
morning of tlhe day of the election Tlhe leaflet, containinlg a reponse l
previous campaign literature distributed b Petliioner, also incl uded tIh
words "'ailure to ole is an auromaticic IY'S oite " he Regional Dirc-
lor fountid thi to he a misleading representation of the Bo ards' proesses.
sustained tile ohiillion, ;lii oti dered it ncs 1tC-t.c ll
11 See ni) partial diselt in /I.a.k Siup or , liitrlr [il .r ( r) mipar'. 21 )
NlIRB 1275 (179), sehlch Tll .nsl; cl ia stiilcrclt h the emplixer there
concernlng the mechanics tof' it cccifrll-.Cl il i st i IlcI t l L iac
Bradfirrd, d .ii rn c , 1 I tumi S/ m, r i . )t i.. , N L. idatlirtl'
Inc., 240 Nl RB 5 1 1 . s) li h etlch ctict hcd tilc [iltcLl A nill t ifi']' l
Board docu menlt
CMMUNTY HOSPITAL. INC llS I
1082 D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I pointed out in my General Knit dissent,
such decisional disarray can only lead to increased
litigation and further expansion of already bloated
dockets, rather than "promoting the primary pur-
pose of the Act [which is to] encourag[e] the prac-
tice and procedure of collective bargaining."
MEMBFR TRUESDALE, dissenting:
On January 17, 1980, the day of the election, the
Employer distributed literature to employees which
contained, inter alia, an assertion that, "Failure to
vote is an automatic YES vote." The Employer
argues, and the majority apparently agrees, that the
statement in issue "followed a plea to vote against
the Union" and is "merely an inartfully drafted at-
tempt to assure that all eligible employees voted." I
disagree. Like the Regional Director, I believe that
the Employer's statement is a substantial misrepre-
sentation of a material fact. 2 As noted by the Re-
hl Unlike the Regionar l Dirctor I do not rely on Formoi, In(.. 233
NlRB 01 (1'977) As noted in rly dissenting opinion in Kinni,t Shoe Cur-
gional Director, 10 employees did not vote in the
election. There is, of course, no way to determine
the precise reason for their failure to vote. Howev-
er, it is not unreasonable to conclude that employ-
ees sympathetic to Petitioner chose not to vote in
the mistaken belief that abstention from voting was
the equivalent of voting "yes." In any event, the
Employer, not Petitioner or the employees, must
bear the onus for any ambiguity in this matter.
And, since the statement was made so close to the
election as to preclude Petitioner from responding
to the Employer's misstatement, I would find that
the Employer's conduct was sufficient to invalidate
the election.
I would set aside the election and direct a
second election.
poration, 251 NRB 498 (1980), I would overrule orm,co and would
apply to misrepresentations of this sort the same standards against which
all misrepresentatioins are measured, ie. Ihe standards articulated by the
Board in lollywood (uran- C(ompany, In(, 140) NI.RB 221 (1962), as
reaffirmed in General Knit of CalifJ)rnia, Inc.. 239 NLRB h19 (1978).