Rockville General Hsopital

National Labor Relations Board - Unpublished Board Decisions

Nov 18, 2009

34-RC-002314 (N.L.R.B. Nov. 18, 2009)

NOT INCLUDED IN LS
BOUND VOLUMES Vernon, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ROCKVILLE GENERAL HOSPITAL
Employer
and Case 34-RC-2314
AMERICAN FEDERATION OF TEACHERS,
CONNECTICUT
Petitioner
DECISION AND DIRECTION OF SECOND ELECTION
The National Labor Relations Board' has considered an
objection to an election held on May 13, 2009, and the hearing
officer's report recommending disposition of it. The election
was conducted pursuant to a Stipulated Election Agreement. The
1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the
Board's powers in anticipation of the expiration of the terms of
Members Kirsanow and Walsh on December 31, 2007. Pursuant to
this delegation, Chairman Liebman and Member Schaumber
constitute a quorum of the three-member group. As a quorum,
they have the authority to issue decisions and orders in unfair
labor practice and representation cases. See Sec. 3(b) of the
Act. See Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir.
2009), petition for cert. filed 78 U.S.L.W. 3130 (U.S. September
11, 2009) (No. 09-328); New Process Steel v. NLRB, 564 F.3d 840
(7th Cir. 2009), cert. granted, S.Ct. 1 2009 WL 1468482
(U.S. Nov. 2, 2009); Northeastern Land Serv-ices v. NLRB, 560
F.3d 36 (1st Cir. 2009), petition for cert. filed 78 U.S.L.W.
3098 (U.S. August 18, 2009) (No. 09-213). But see Laurel Baye
Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir.
2009), petition for cert. filed, -U.S.L.W.- (U.S. September
29, 2009) (No. 09-377).
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tally of ballots shows 45 for and 46 against the Petitioner,
with no challenged ballots.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted the hearing officer's
finding S2 and recommendations , 3 and finds that the election must
be set aside and a new election held.
2 The Employer has excepted to some of the hearing officer's
credibility findings. 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 find no basis for reversing the findings.
3 Member Schaumber agrees that the hearing officer's
recommendation to find objectionable conduct is consistent with
extant Board precedent, which he applies for institutional
reasons. However, he would revisit this line of precedent in an
appropriate case. An employee who engages in open Section 7
activities at the work place has no reasonable expectation that
those activities will not become known to his or her employer
through casual observation. That risk is inherent in the
activity; employers may make mental notes as easily as written
ones, and employees are unlikely to be surprised or coerced by
the fact that in a contested election the parties are monitoring
their respective levels of support. Indeed, one of the benefits
of the secret ballot is that the ultimate choice remains with
the employee; he or she may wear a "vote no" button every day,
but still vote yes if his or her conscience so dictates.
Chairman Liebman adheres to longstanding precedent holding
that employer observation of open union activity crosses the
line when the employer visibly takes notes absent good cause.
When an employer visibly makes a record of its employees,
prounion activity, the resulting coercion is not necessarily
.erased by the secrecy of the ballot: as they enter the polls,
employees know that the record of their union activity already
has been made, and that knowledge may likely tend to influence
their vote.
2
DIRECTION OF SECOND ELECTION
A second 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 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 American
Federation of Teachers, Connecticut.
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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
(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 - November, 18, 2009.
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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