Heartland of Martinsburg

National Labor Relations Board - Board Decisions

Feb 15, 1994

313 N.L.R.B. 655 (N.L.R.B. 1994)

655
313 NLRB No. 112
HEARTLAND OF MARTINSBURG
1 The National Labor Relations Board has considered the objec-
tions to the election held on July 1, 1993, and the Regional Direc-
tor’s disposition of them. The election was held pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 47 for and 37
against the Petitioner, with 5 challenged ballots, an insufficient num-
ber to affect the election.
2 Consequently, it is immaterial whether the Employer actually re-
ceived the preelection notice of procedures.
Health Care and Retirement Corporation, d/b/a
Heartland of Martinsburg and District 1199,
The Health Care and Social Service Union,
SEIU, AFL–CIO, Petitioner. Case 5–RC–13892
February 15, 1994
DECISION AND ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
The issue presented here is whether the Regional Di-
rector correctly recommended overruling the Employ-
er’s objections to the election because the Employer
failed to submit signed witness statements or affidavits
in support of the objections.1 The Board has reviewed
the record in light of the exceptions and brief, and has
decided, for the reasons set forth below, to reverse the
Regional Director and to remand this proceeding for
investigation of the objections.
Prior to the election, the Regional Office mailed the
Employer a form entitled ‘‘Notice of Procedures to be
Followed when Filing Objections to an Election with
Region 5 and/or After Elections(s) in Which there are
Determinative Challenged Ballot(s).’’ This notice stat-
ed, in relevant part, that evidence submitted in support
of objections should be a ‘‘list of all witnesses whose
testimony is relied on to support the objections, to-
gether with the written statements or affidavits incor-
porating the witnesses’ testimony and signed by the
witness.’’ (Emphasis in the original.) The Employer
has denied receiving this document.
The election took place on July 1, 1993. On July 9,
the Employer timely filed objections stating that the
Board should set aside the election because of alleged
threats of violence by union agents and of alleged
prounion activity by supervisors. On July 19, counsel
for the Employer timely filed evidence in support of
its objections. This evidence consisted of a 13-page
evidentiary statement and three attached documents.
The statement provided specific descriptions of alleg-
edly objectionable activity, lists of witnesses who
could provide testimony about this activity, and legal
argument.
The Regional Director found that the Employer had
not met its obligation to provide evidence in support
of the objections. He did not directly assess the Em-
ployer’s evidentiary statement. Instead, the Regional
Director found that the Employer’s submission was in-
adequate because it had failed to submit signed witness
statements or affidavits, as required by Region 5 in its
notice of postelection procedures. We disagree that this
was an inadequate submission under applicable Board
rules.
Section 102.69(a) of the Board’s Rules and Regula-
tions states, in pertinent part,
Within 7 days after the filing of objections, or
such additional time as the Regional Director may
allow, the party filing objections shall furnish to
the Regional Director the evidence available to it
to support the objections.
The Rules do not further define the nature of the evi-
dence that the objecting party must submit in order to
initiate a Regional Director’s investigation. Contrary to
the Regional Director and Region 5’s procedural no-
tice, however, the Board does not require that such
evidence include signed witness statements or affida-
vits.2
In Holladay Corp., 266 NLRB 621 (1983), a case
also involving Region 5, the Board held that when an
objecting party has provided details of the alleged ob-
jectionable conduct and identified witnesses who alleg-
edly could provide supporting evidence, the Regional
Director could not overrule the objections solely on the
basis that the objecting party had not produced wit-
nesses or their affidavits. Recognizing the practical dif-
ficulties which may confront an objecting party in se-
curing the voluntary cooperation of employee wit-
nesses, the Board emphasized that the critical pre-
requisite to a full investigation of specific allegations
in objections is the submission of names of witnesses
who can provide direct relevant testimony.
We discern no material difference between Holladay
and the present case. The employer in Holladay sub-
mitted the hearsay affidavit of its vice president, who
related what two named employees had told him about
alleged objectionable conduct. The Employer here sub-
mitted counsel’s hearsay description of alleged objec-
tionable conduct and the names of witnesses who
could provide direct testimony about it. This was suffi-
cient information to warrant a full investigation of the
issues raised in the objections. Accordingly, we con-
clude that the Regional Director’s failure to conduct an
investigation was an abuse of discretion. We shall re-
mand these objections to the Regional Director for a
full investigation or a hearing as he deems appropriate.
ORDER
It is hereby ordered that this proceeding be re-
manded to the Regional Director for a supplemental re-
port on the Employer’s objections. This report may be
based on a full investigation or, if necessary, on evi-
dence adduced at a hearing. Such Supplemental Report
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on Objections shall contain recommendations concern-
ing whether the alleged threats by the Petitioner and
the alleged prounion conduct of supervisors constituted
objectionable conduct warranting the setting aside of
the July 1, 1993 election.
IT IS FURTHER ORDERED that the hearing officer des-
ignated for the purpose of conducting any hearing pur-
suant to this Order shall prepare and cause to be
served on the parties a report containing resolutions of
credibility of witnesses, findings of fact, and rec-
ommendations to the Board as to the disposition of
said objections. Within 14 days from the issuance of
such report, either party may file with the Board in
Washington, D.C., eight copies of exceptions thereto.
Immediately on the filing of such exceptions, the party
filing the same shall serve a copy thereof on the other
party and shall file a copy with the Regional Director.
If no exceptions are filed thereto, the Board will adopt
the recommendations of the hearing officer.
IT IS FURTHER ORDERED that this proceeding is re-
ferred to the Regional Director for Region 5 for the
purpose of conducting a full investigation or hearing,
and that the Regional Director is authorized to issue
notice of any such hearing.