Dominguez Valley Hospital

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 842 (N.L.R.B. 1980)

X842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Medical Hospital of Compton, d/b/a Do-
minguez Valley Hospital and Hospital and
Service Employees Union, Local 399, Service
Employees International Union, AFL-CIO, Pe-
titioner' and International Union of Operating
Engineers, Local 501, AFL-CIO, Petitioner.2
Cases 21-RC-15969 and 21-RC-15976
August 27, 1980
DECISION ON REVIEW AND
CERTIFICATION OF
REPRESENTATIVE
BY MEMHI RS JNKINS, PI-NI IIO., AND
TRU ESDAI.E
On December 31, 1979, the Acting Regional Di-
rector for Region 21 issued a Supplemental Deci-
sion, Order, and Direction of Second Election in
the above-entitled proceeding, in which he set
aside the election held on August 31, 1979, in
voting groups A and B on the basis of his conclu-
sion that certain of the Employer's objections
thereto should be sustained.3 Thereafter, pursuant
to the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Employer
and Local 399 filed timely requests for review of
the Acting Regional Director's decision. The Em-
ployer contended that he erred in overruling cer-
tain portions of its Objections 12 and 15, and Local
399 contended that in sustaining the Employer's
Objection 2 and certain other portions of its Objec-
tions 12 and 15 he departed from precedent.
By telegraphic order dated February 8, 1980, the
National Labor Relations Board denied the Em-
ployer's request for review and granted Local 39 9 's
request for review. (Member Truesdale, dissenting
in part, indicated he would have denied Local
399's request for review as to Objection 2.) The
Employer filed a brie,' on 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,
lHereinafter called Local 399
leretinafter called I cal 5)1
' Ih tally oi hallois for ltitig group I, mnaillenance employees onl.
shouwed hat of approximately 14 eligible Soters, 14 hallots ereC cast, of
Lhich I3 ere for ocal 5)1. 0() were fr Ilocal 319. arid I I were against
Ihe participating labor organialionis There iscre no void hallolts rand
none x ;as challenged Fhecrcorc, the ballolts of grioups A and It avere
pooled all ernplhoees) and the tall5 of' tlhos ballots showedl that of ap-
proxima tely 320) eligible ,olcrs 273 balllts .ere cast, of ,ahich 151) ,sere
fir ocal 99 106 were against. 2 w v crc ild. rd 17 verc hialleniged
The mpltoyer filed It objections ad I elcal 5(1 filed 2 ohbjectlion, As
indicated, certain of Ihc Fl lnployer's objIctIlis rc s ue st eilled b t lie
Acting Regionall lirctor; all other objections ere c.l ruledLl
251 NLRB No. 119
including the Employer's brief on review, and
makes the following findings:
The Employer's Objection 2 alleged that an in-
correct announcement of the hours of the election.
made over the Employer's PBX system, caused
confusion and prevented some employees from ex-
ercising their right to vote.
As found by the Acting Regional Director, the
election at the Employer's facility was scheduled in
two sessions, from 6:30-7:30 a.m. and from 2:30 4
p.m. Due to the size of the Employer's operation
and the various shifts worked by employees, an-
nouncements regarding the voting times were made
periodically throughout the day over the public ad-
dress (PA) system. In making one afternoon an-
nouncement, the Employer's PBX operator incor-
rectly stated that the polls would close at 4:30 p.m.
rather than 4 p.m. A few minutes later, she reread
the notice correctly, but apparently did not refer to
the preceding announcement as incorrect. Five or
six voters who appeared at the polls after 4 p.m.
were permitted to cast challenged ballots. There
was also evidence that another eligible voter, Eva
Davis, attempted to vote after the closing of the
polls but was not permitted to do so, even though
Board agents and observers were still in the voting
area. One of Local 399's observers stated that at
least one late voter w\as turned away, hut the inves-
tigation did not disclose whether or not that voter
was Davis.
The Acting Regional Director noted that 47 eli-
gible voters did not cast ballots, a number large
enough to affect the outcome of the election. Al-
though the investigation did not reveal any evi-
dence as to the likelihood that a substantial nurmber
of these 47 voters attempted to vote after 4 p.m.,
that they heard the one incorrect announcement, or
even that they were scheduled to vote during the
afternoon shift, he concluded that there exists a
reasonable belief that the incorrect announcement,
combined with the Board agenits' conduct in not
permitting one, possibly two, voters to cast ballots,
resulted in uncertainties, thus compromising the in-
tegrity of the election process to the point that the
election should be set aside.
Petitioner Local 399 contends that the Acting
Regional Director's conclusion that the incorrect
announcement caused the integrity of the election
process to be compromised is highly speculative.
particularly since his decision does not support his
conclusion that a large number of eployecs vwere
disenfranchised by the incorrect announcement.
We find merit in this coltentioll.
In sustaining Objection 2, the Acting Regional
Director cited Repal Bra i Manotiiuclurimng Compa-
DOMINGUEZ VAITTY 110SITIAl 84;
. y,4 and .. D. Julliard and Co., : for the proposi-
tion that the integrity of the election process was
compromised. In our opinion, these cases are dis-
tinguishable. In Repcal Brass, the polls were closed
minutes prior to the scheduled closing time due to
the arbitrary selection of an inaccurate timepiece.
At least I of the 39 eligible voters who did not
vote was prevented from doing so by the early
closing. Inasmuch as the election results could have
been affected by the votes of those eligible who
did not vote, the election was set aside.
In Julliard, the Board refused to set aside the
election where there was no affirmative showing
that any disenfranchisement of eligible voters "may
have resulted" from the asserted withdrawal of the
employer's offer to permit voting on company
time. Finding that a representative number of eligi-
ble employees did vote and no affirmative showing
that any failed to vote because of this alleged con-
fusion, the objection was overruled.
Unlike the situation in Repeal Bras.s, the Board
agent conducting the election at DominguCe Valley
did not close the polls early. Instead, as the Em-
ployer concedes, votes were accepted up to at least
15 minutes after the polls were scheduled to close.
This enabled five or six eligible voters who ap-
peared after 4 p.m. to cast ballots under challenge
(ballots which would have been opened if they had
been determinative of the outcome).
In his investigation of the objection, the Acting
Regional Director found evidence that one eligible
employee-and possibly another-appeared after
the polls were finally closed, and was not allowed
to vote under challenge. The Employer stated in its
brief on review that the polls were actually closed
by 4:15 p.m., and asserted that because union and
employer representatives left the voting area after
that time for the counting of the ballots, it was
unable to ascertain which employees arrived to
vote after 4:15 p.m. However, the Employer of-
fered no evidence, nor was any uncovered during
the investigation, to show that the 47 eligible unac-
counted-for voters were misled by the one incor-
rect announcement. There were numerous other
correct announcements made periodically through-
out both shifts, in addition to the normal election
notices posted prior to the election, containing the
hours the polls would remain open.
We agree with Local 399 that the Acting Re-
gional Director's conclusion is unduly speculative.
We believe it would be unreasonable to find that
the inadvertent and minimal deviation in the instant
case of one incorrect announcement, weighed
against numerous correct announcements and
10' 4 N R 4 1 54)
I lI NI RPI 2197 1q54)
posted notices, would so confuse eligible voters as
to prevent them from attempting to vote if they in-
tended to do so, or from seeking clarification as to
the correct poll closing time. Absent such a reason-
able basis for believing that a significant number of
the approximately 47 eligible employees who did
not cast ballots were misled or confused by one in-
correct announcement, we find insufficient basis for
setting aside the election. 6 Accordingly. we hereby
overrule the Employer's Objection 2.
The Acting Regional Director sustained the Em-
ployer's Objections 12 and 15 to the extent they al-
leged that Local 399 misrepresented that it had ne-
gotiated terms and conditions of employment for
employees at another hospital.
The alleged misrepresentation is contained in a
one-page leaflet bearing the caption "We're orga-
nizing Dominguez Valley for common sense." Peti-
tioner Local 399 states the leaflet was distributed 2
weeks before the election. The Employer asserts it
reviewed the document the day before the election
and therefore had insufficient time to verify its ac-
curacy. The leaflet depicts, in bar graph form, spe-
cific wage rates received by four classifications of
employees at "Kaiser Hospitals" and at "County
Hospital," and places question marks above the
bars representing wvages paid by the Employer.
Below the graphic representations are the words:
"Compare . . . Then vote for 399."
The Employer asserts that the leaflet conveys
the impression that Local 399 negotiated contracts
at Kaiser and County Hospitals. It is undisputed
" Sc .- I Jlfurd. upra In BoitaR Rbon U1rh and IlBr. .z. i Wa rinr
(ronpunt. 7 NLR I 1 1949). relied upon by our dissenting colleague.
the poll, were closed 45 minutes early when it was determined that all
emplo)ees on the eligibility list had voled However. there were 76 laid-
roff employees who had not been included on the eligibility list who were
alleged h) the petitioning union t) be eligible. Only nine soted (under
challenge); fur ecre turned away after the polls were closed. hc Board
found that, under the circumstance. the premature closing of the polls
s· as prejudicial error where the number of laid-ioff emplo ee, who hld
nlot voted was sufficient to affect the results. and the Board agent had
been apprised that these allegedly eligible employees had not s, oted
We vste Bonita as distinguishable factually from the instant cae. in
that the polls were indeed closed early, contrary to Board rules More-
oer the Board agent closed them over the protest of one of the parties
who ads ised him that these allegeoly eligible employees had not oted
Here. to engage in the inference suggested by our dissenting colleague
,would require hat we accept the suggestion that a substantial number f
emploees (a) were misled b the incorrect announcement. (h) showed up
to ote after 4 15 p m , ( upon arri al. fund the polls closed. and (dl
did notl thereafter register some form of protest or complaint er having
beetl disenlfranlchtised Ir outir piniorl the absence of any such protestl or
complrll clcarl ritegates our colleague's suggested inference that a sub-
,antial number of emplohees could hase been misled by the incorrect anr-
nouncement In an) e elit, if swe were disposed ii give credence to the
suggested inference that ia luhstantial number (of emploees culd hac
heen miled bh the in.orrect .inllouncement we rouild nor t se side the
eleciiln but, rat:her, uuld remand the case t the Regional Drector for
further iril citigatl)ln to deternmie icshter or not the niing 47 enplo!-
cC, cr- r CrC iio workilng In the oispilal it the Iihc *f ihe a-
Iiiulic11ll Miid ll .. ,uld 'Ir cIulld no h ll ilrd llld relied on Ilhe
iC rrec l ialli(lII n celCntIi
844 I)LECISIONS OF NATIO()NAL IABO()R REIATIONS BO()ARI)
that Local 399 did in fact negotiate a contract with
Kaiser, covering the four classifications of employ-
ees whose wage rates are graphically depicted, and
that sister locals of Local 399 negotiated a contract
with County covering those classifications. The
Acting Regional Director agreed with the Employ-
er that the document did convey the message that
Local 399 had negotiated the wage rates depicted
for County Hospital employees. He added that the
same message was again conveyed by Local 399 in
another leaflet, which was distributed on August
28, 3 days before the election. That leaflet, cap-
tioned "For the record," states in part:
But before we look at the statements Adminis-
trator Hennessy did make, there is one fact he
cannot disprove or dispute. Local 399 members
in hospitals similar to yours receive better wages,
better benefits, and enjoy better conditions ....
Two paragraphs below this statement, responding
to Hennessy's earlier letter to employees stating
"you do not need a union to obtain excellent bene-
fits, you already have them," the leaflet reads:
We agree that you have a substantial number
of benefits. However, Local 399 is most con-
cerned with the quality of employee benefits
not the quantity, which management would
like to dwell on.
In addition, the salary level for LVN (Certi-
fied) at Step 5 quoted to be $1,777 per month
is still not comparable with a regular LVN at
Kaiser, being $1,217 per month, or a regular
LVN at County Hospital being $1,143 per
month.
Local 399 contends that the bar graph represen-
tation of wage rates does not indicate that Local
399 negotiated the rates for employees at either
Kaiser or County Hospitals and was merely intend-
ed to convey to unit employees what employees in
similar classifications were receiving at two other
hospitals in the area. Clearly, the document on its
face does not indicate whether or not the employ-
ees of Kaiser or County Hospitals, whose wage
rates were depicted, were represented by any labor
organization, nor does it imply such representation
by Local 399. Likewise, the leaflet distributed on
August 28 merely indicated, at one point, that
Local 399 represented employees at similar hospi-
tals, without specifying the hospitals' names or
their locations; and it asserted, at another point,
that the salary level for certain of the Employer's
LVNs quoted by Hennessy was not comparable
with the rates received by regular LVNs at Kaiser
and County Hospitals, the same rates as given in
the earlier leaflet. Again, this was done without
stating specifically that these wage rates were ob-
tained through collective bargaining. Thus, in our
view, the statements made about wage rates at
Kaiser and County Hospitals in the two leaflets,
considered together, cannot be said to convey the
impression that Local 399 represented the employ-
ees of these hospitals. But even if we accept the
Acting Regional Director's conclusion that the
leaflets contained a misrepresentation as to Local
399's status with regard to the employees at
County Hospital, the facts show that Local 399 did
negotiate the wage rates at Kaiser Hospital. The
facts also show that the rates at County Hospital
were, in each cited classification, substantially
lower than the rates Local 399 negotiated at Kaiser
Hospital. In such circumstances it is clear that the
Employer's employees would not have been in-
duced to vote for Local 399 because of the lower
rates at County Hospital, as against the substantial-
ly higher wage rates at Kaiser Hospital. Accord-
ingly, we conclude that Local 399 did not engage
in any misrepresentation of a material fact which
would warrant setting aside the election.7
The Employer's Objections 12 and 15 relating to
these alleged misrepresentations are therefore
hereby overruled.
Accordingly, as the Employer's objections have
been overruled, and as the tally of ballots shows
the Union has received a majority of the valid bal-
lots cast in the election, we shall certify the results
of the election.
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Hospital and Service
Employees Union, Local 399, Service Employees
International Union, AFL-CIO, and that, pursuant
to Section 9(a) of the National Labor Relations
Act, as amended, the said labor organization is the
exclusive representaive of all employees in the unit
found appropriate herein for the purposes of col-
lective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of em-
ployment.
MEMBER TRUESDALE, dissenting in part:
Contrary to my colleagues, I would not certify
Petitioner Local 399 at this time. Rather, I would
sustain the Employer's Objection 2 and direct a
new election herein. In this regard, I agree with
the Acting Regional Director's conclusion that the
7 Ilollywood (ramic ( mpany. In:., 140 NLRB 221 (192) See alkr
General Kir o (C'ulfrrno , Inc. 21q N.L R hig (1978\ Mcmhber I'ncllo
wovuld agree thalt the mircp l.CIclatill alleged in Ihle FmployCer'. oblcc-
tiloll Ll'S nII t \.itiarrln Ctl ing iMid the lcCiol l, hut S( finlld, for the rea-
.ils solt forth i Shlippitg wKa ISdl M, tr c, Ic . 228 N R 1311 (1977)
See aid his diss.inting opiin in ( n r terul Knit, pra
DO)MINGUFZ VALLLEY HSPITAL 845
election should be set aside based on his finding
that there was some confusion as to exactly when
the polls wre to close because of a misread an-
nouncement concerning the hours of the election.
The uncontroverted facts, as more fully set forth
in the Acting Regional Director's report, warrant
repeating here. On the afternoon of the election,
the PBX operator incorrectly announced over the
public address system that the polls would remain
open until 4:30 p.m. rather than 4 p.m. The mistake
was apparently called to the operator's attention by
one of the Employer's supervisors. While the oper-
ator reread the announcement shortly thereafter,
stating the correct closing time of 4 p.m., she did
not state that the earlier announcement had been
incorrect.
It appeared to the Acting Regional Director that
some, if not all, of the five or six eligible voters
who presented themselves at the polls after 4 p.m.
were told by their supervisors that the polls were
to remain open until 4:30 p.m. The Board agents
permitted these voters to cast challenged ballots.
However, at least one eligible voter, employee
Davis, who decided to vote after 4 p.m. was not
permitted to cast a ballot although the Board
agents and observers were still in the voting area.
In this regard, Davis stated, inter alia, that she had
seen the election notices several times prior to the
election but had not read the notice in detail and
did not remember reading the voting times. She
also stated that she did recall hearing the election
announcements over the public address system and,
as noted by the Acting Regional Director, at least
one such announcement stated that the polls would
be open until 4:30 p.m.
Additionally, one of Petitioner's election observ-
ers stated that at least one late voter was refused
permission to vote. In this regard, while the inves-
tigation did not disclose whether or not the voter
referred to by the observer was Davis, the Acting
Regional Director observed that there exists the
possibility that two voters were not permitted to
cast ballots.
As pointed out by the Acting Regional Director,
273 valid votes and challenged ballots were cast
out of 320 eligible voters, leaving 47 eligible voters
unaccounted for, a number sufficient to affect the
results of the election. The Acting Regional Direc-
tor noted that, while there was no evidence that all
of the 47 unaccounted-for eligible voters attempted
to vote after 4 p.m. or that they heard the incor-
rect announcement concerning the hours of poll-
ing, there exists a reasonable belief that the combi-
nation of the incorrect announcement and the
Board agents' conduct in not permitting one, and
possibly two, voters to cast ballots resulted in un-
certainties in the election results.
My colleagues have not set the election aside
here because they have found no reasonable basis
for believing that a significant number of the ap-
proximately 47 eligible employees who did not cast
ballots were misled or confused by the incorrect
announcement. 1, however, cannot ignore the in-
correct announcement by assuming that it did not
affect the decision of some of these employees as to
the time that they would vote.
It is the Board's responsibility to assure that a
full opportunity to vote be given to those eligible.
It is, of course, impossible here to determine
whether and to what extent the incorrect an-
nouncement affected the outcome of the election.
However, in view of the fact that one-possibly
two-of the 47 eligible voters who attempted to
vote after 4 p.m. heard the incorrect announce-
ment, it appears neither unreasonable nor unduly
speculative to conclude that other eligible employ-
ees who did not cast ballots were similarly con-
fused by the incorrect announcement. Further,
while I find persuasive the affirmative showing
here that disenfranchisement of eligible voters may
have resulted from the incorrect announcement, I
note that Board precedent does not require such af-
firmative evidence. Thus, a sufficient basis for set-
ting aside an election exists upon a showing, inter
alia, that the number of eligible voters who are
prevented from voting are, in fact, sufficient to
affect the results of the election.8
Where, as here, it is clear that the votes of the
employees possibly disenfranchised by the irregu-
larity are sufficient in number to affect the outcome
of the election, it seems obvious that the atmos-
phere in which the election was conducted raises
sufficient doubts as to the validity of the results as
to require that the election be set aside and a new
election directed. Accordingly, I dissent from my
colleagues' refusal to do so.
' See, e g. Bonita Ribhhon .ill and Breiwton Weaing Company,. 87
NIRi 11 15 (1949)
DOMINGLILL VA LEY HOSPTAL 545