Good Samaritan Hospital

National Labor Relations Board - Unpublished Board Decisions

Aug 6, 2010

31-RD-001555 (N.L.R.B. Aug. 6, 2010)

NOT TO BE INCLUDED LSP
IN BOUND VOLUMES Los Angeles, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
GOOD SAMARITAN HOSPITAL
Employer
and
ALLEN V. SMITH
Petitioner
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, UNITED HEALTHCARE WORKERS-WEST
Union
Case 31-RD-1555
DECISION AND DIRECTION OF THIRD ELECTION
The National Labor Relations Board, by a three-member
panel,' has considered an objection to an election held
April 29-30, 2008, and the judge's report and supplemental
decision on remand recommending disposition of it. The
election was conducted pursuant to a Decision and Direction
of Second Election issued by the Board on February 29,
'In an unpublished order dated August 27, 2009, the
Board remanded this matter to the judge with instructions
to reopen the record for the presentation of additional
evidence. Having carefully considered the matter, we
reaffirm the earlier decision to remand the ca-S'e for this
purpose.
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2008. The tally of ballots shows 209 for and 180 against
the Union, with 5.challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, and adopts the judge's findings2 and
recommendations,3 as supplemented and amended on remand,4
and finds that the election must be set aside and a new
election held.5
2 The judge was sitting as a hearing officer in this
representation proceeding. The Employer and the Union have
implicitly excepted to some of the hearing officer's
credibility findings in her report and supplemental
decision on remand, respectively. The Board's established
policy is not to overrule a hearing officer's credibility
resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have
carefully examined the record and find no basis for
reversing the findings.
3 Although 11 objections were originally set for
hearing, the Employer presented evidence on only Objections
3, 10 and 11. In the absence of exceptions, we adopt pro
forma the judge's recommendation to overrule the Employer's
Objections 10 and 11, alleging improper electioneering at
the polls.
4 In her original report, the judge recommended
overruling Objection 3, which alleged that the Union had
interfered with employees' free choice by mailing checks to
employees' homes a few weeks before the election. On
remand, having found that the Union conferred a benefit by
distributing these checks, the judge recommended sustaining
Objection 3. We agree that under the Board's traditional
conferral of benefits analysis the Union's conduct was
objectionable.
5 In her original report, the judge quoted E.L.C.
Electric, Inc., 344 NLRB 1200, 1201 fn. 6 (2005), for the
proposition that the critical period "commences at the
filing of the representation petition and extends through
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DIRECTION OF THIRD ELECTION
A third election by secret ballot shall be held among
the employees in the unit found appropriate, whenever the
Regional Director deems appropriate. The Regional Director
shall direct and supervise the election, subject to the
Board's Rules and Regulations. Eligible to vote are those
employed during the payroll period ending immediately
before the date of the Notice of Third Election, including
employees who did not work during that period because they
were ill, on vacation, or temporarily laid off. Also
eligible are employees engaged in an economic strike that
began less than 12 months before the date of the first
election and who retained their employee status during the
eligibility period and their replacements. Jeld-Wen of
Everett, Inc., 285 NLRB 118 (1987). Those in the military
the election." Although this statement is accurate for
initial elections, "the critical period for a second
election commences as of the date of the first election."
Star Kist Caribe, Inc., 325 NLRB 304 (1998). Similarly,
the critical period for the third election will be the
period between the second and third elections.
Furthermore, the judge recommended that, pursuant to
Lufkin Rule Co., 147 NLRB 341 (1964), language explaining
the basis for holding a new election be included in the
notice of a new election. The Union filed a bare exception
to the inclusion of this language. Absent any argument by
the Union as to why such language should not be included,
we adopt the judge's determination to include the language.
Guardian Automotive Trim, Inc., 337 NLRB 412, 413 fn. 5
(2002); NLRB Casehandling Manual (Part Two), Representation
Proceedings, Sec. 11452.3. '
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services may vote if they appear in person at the polls.
Ineligible to vote are employees who have quit or been
discharged for cause since the payroll period, striking
employees who have been discharged for cause since the
strike began and who have not been rehired or reinstated
before the election date, and employees engaged in an
economic strike that began more than 12 months before the
election date and who have been permanently replaced.
Those eligible shall vote whether they desire to be
represented for collective bargaining by Service Employees
International Union, United Healthcare Workers-West.
To ensure that all eligible voters have the
opportunity to be informed of the issues in the exercise of
their statutory right to vote, all parties to the election
should have access to a list of voters and their addresses
that may be used to communicate with them. Excelsior
Underwear, 156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co.,
394 U.S. 759 (1969). Accordingly, it is directed that an
eligibility list containing the full names and addresses of
all the eligible voters must be filed by the Employer with
the Regional Director within 7 days from the date of the
Notice of Third Election. North Macon Health Care
Facility, 315 NLRB 359 (1994). The Regional Director shall
make the list available to all parties to the election. No
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extension of time to file the list shall be granted by the
Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections
are filed.
Dated, Washington, D.C., August 6, 2010.
Peter C. Schaumber, Member
Mark Gaston Pearce, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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CHAIRMAN LIEBMAN, concurring.
I agree with my colleagues and the judge that the
Employer's Objection 3 should be sustained.
The Board's function in election proceedings is "to
provide a laboratory in which an experiment may be
conducted, under conditions as nearly ideal as possible, to
determine the uninhibited desires of the employees."
General Shoe Corp., 77 NLRB 124, 127 .(1948), enfd. 192 F.2d
504 (6th Cir. 1951), cert. denied 343 U.S. 904 (1952). The
Board will set aside an election if one party engaged in
conduct that could have the reasonable effect of upsetting
those laboratory conditions. See id.
Here, the Employer and the Union were in the process of
resolving a dispute concerning the Employer's over-deduction
of dues from certain unit employees' pay. Although the
amounts of those over-deductions had not yet been resolved,
19 days before the election 126 unit employees received
checks from the Union in amounts as high as $849.30. It was
later determined that the total amount of those payments
more than $27,000 -- was almost double the amount actually
owed employees. Other than a cryptic notation on the check
stub, the Union did not explain the payments to employees
until 9 days later, when it distributed a letter that could
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be interpreted as linking the payments to the upcoming
election.
In concluding that laboratory conditions were upset, I
need not, and do not, find that the Union issued the checks
in an improper attempt to influence the election, as opposed
to a good-faith attempt to resolve the parties' lingering
dispute concerning the amount of over-deduction of dues.'
Regardless, reasonable employees would be puzzled and
unsettled by the payments, and some would view them as an
attempt to influence employees' votes.2 The Union won the
election by 29 votes; therefore, a change in 15 votes -- a
small fraction of the number of employees who received
checks -- would have resulted in a different outcome.
Accordingly, I find that, in the particular circumstances of
this case, the election was not held under the requisite
laboratory conditions. I therefore agree with my colleagues
that the results must be set aside and a new election held.
1 The timing and inaccuracy of the checks were
attributable at least in part to the fact that the Union had
earlier requested from the Employer, but had not yet
received, information needed to calculate the amounts owed.
2 Although the test is an objective one, the conclusion
that reasonable employees would be confused by the payments
is supported by evidence that at least 20 employees did, in
fact, express confusion to the Union about why the checks
had been issued.
2
Dated, Washington, D.C., August 6, 2010.
Wilma B. Liebman, Chairman
NATIONAL LABOR RELATIONS BOARD
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