Kindred Healthcare, Inc.

National Labor Relations Board - Unpublished Board Decisions

Jul 13, 2010

28-RC-006644 (N.L.R.B. Jul. 13, 2010)

NOTINCLUDEDIN LSP
BOUND VOLUMES Albuquerque, NM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
KINDRED HEALTHCARE, INC.
Employer
and Case 28-RC-6644
DISTRICT 1199NM NATIONAL UNION OF
HOSPITAL AND HEALTHCARE EMPLOYEES,
AFSCME, AFL-CIO
Petitioner
DECISION AND DIRECTION OF SECOND ELECTION
The National Labor Relations Board, by a three-member panel, has
considered objections to an election held on April 1 and 3, 2009, and the hearing
officer's report recommending disposition of them. The election was conducted
pursuant to a Stipulated Election Agreement. The tally of ballots in the combined
professional and nonprofessional unit shows 30 for and 68 against the Petitioner,
with no challenged ballots.'
The Board has reviewed the record in light of the exceptions and brief, has
adopted the hearing officer's findings and recommendations with respect to
The tally of ballots in the professional voting group shows 16 votes for and 8 against inclusion
with nonprofessionals.
2Petitioner's Objection 2, and finds that the election must be set aside and a new
election held.
2 We adopt the hearing officer's recommendation to sustain Petitioner's Objection 2 based on the
Employer's posting at the employee time clock of altered sample ballots without including the
requisite bilingual disclaimer in the official Board ballot. Contrary to our dissenting colleague, we
find no merit in the Employer's argument that the hearing officer lacked authority to consider this
conduct and that it was deprived of due process because it did not have notice and opportunity to
litigate the matter. As the hearing officer explained, the altered ballots' posting and their markings
in the "No" box on the question of union representation were "reasonably encompassed" within
the scope of the specific language of Petitioner's Objection 2 alleging an implicit threat based on
this conduct. See Precision Products Group, 319 NLRB 640, 641 fn. 3 (1995).
Further, once the facts of posting, ballot alteration, and lack of bilingual disclaimer were
established --- and the Employer does not dispute this --- the objectionable nature of the altered
ballot was fully litigated. As stated in Ryder Memorial Hospital, 351 NILRB 214, 215 fn. 13 (2007),
"if a party distributes altered sample ballots from which the disclaimer language has been deleted,
we will deem the deletion intentional, and designed to mislead employees. The distribution of
such altered ballots will be treated as per se objectionable." Thus, there is no cognizable
defense to such conduct.
In any event, at the hearing, the Petitioner asked several witnesses whether they had
seen both Spanish and English altered sample ballots, and both the Petitioner and the Employer
asked witnesses whether any employees could not read English or spoke only Spanish. The
hearing officer also examined the Employer's human resources administrator, Donald Whitney,
about differences between the sample ballots provided by the NLRB and the altered sample
ballots, as well as about the language capabilities of employees in the bargaining unit. Both the
Employer and the Petitioner cross-examined Whitney. There was no purpose for this line of
questioning except as it related to the altered sample ballots. Accordingly, the Employer's due
process claim lacks merit.
In light of our adoption of the hearing officer's recommendation to sustain Petitioner's
Objection 2, we find it unnecessary to pass on the hearing officer's recommendation to sustain
Petitioner's Objection 1. In the absence of exceptions, we adopt pro forma the hearing officer's
recommendation to overrule Petitioner's Objection 3.
Unlike his colleagues, Member Schaumber would reverse the hearing officers
recommendation to sustain Objection 2 because the objectionable conduct found by the hearing
officer was not reasonably encompassed within the scope of the objection at issue. The objection
alleged that the Employer's postings restrained and coerced employees "specifically [because]
the Employer in written communications posted at the time clocks, directed employees to vote
No. The communications were posted at the time clock to make the implicit threat that
employees would lose their jobs if they did not vote against the Union." The objection says
nothing about the alteration of sample ballots in violation of the policy established by the Board in
Ryder Memorial Hospital, supra, 351 NILRB at 215. These are two wholly separate and distinct
theories, with neither encompassed by the other. Consequently, the hearing officer lacked
authority to consider the unalleged objection. Precision Products, supra, 319 NILRB at 641. The
ambiguous references to events at the hearing cited by the majority do not show otherwise.
Moreover, assuming that evidence "peripherally touched" on the issue, it does not mean the issue
was "sufficiently related to the objections set for hearing," which is the touchstone of the inquiry.
Fleet Boston Pavilion, 333 NLRB 655, 656 (2001). The majority's endorsement of the hearing
officer's consideration of matters outside the plain language of the objection contravenes the
Board's carefully crafted rules and regulations, which are designed to ensure that election
objections will be narrowly tailored and specific to reflect the Board's policy that representation
cases be processed and decided as quickly as possible. See NLRB Casehandling Manual, Part
Two, Representation Proceedings, Section 11365.3 (postelection matters are to be resolved with
the utmost dispatch).
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DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the employees in
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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 Second
Election, including employees who did not work during the 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
election directed herein and who retained their employee status during the
eligibility period and their replacements. Those in the military 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 date of the election directed herein, and
employees engaged in an economic strike that began more than 12 months
before the date of the election directed herein and who have been permanently
replaced. Those eligible shall vote whether they desire to be represented for
collective bargaining by District 11 99NM National Union of Hospital and
Healthcare Employees, AFSCIVIE, AFL-CIO.
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
3 In directing a new election, the Regional Director should take all appropriate action consistent
with the parties' stipulated election agreement.
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should have access to a list of voters and their addresses that may be used to
communicate with them. Excelsior Underwear, 156 NLRB 1236 (1996); 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 Second 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 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 if proper
objections are filed.
Dated, Washington, D.C., JulY 13, 2010
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
Mark Gaston Pearce, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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