Shorewood Manor Nursing & Rehabilitation Center

National Labor Relations Board - Board DecisionsMay 23, 1975

217 N.L.R.B. 1106 (N.L.R.B. 1975)

1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shorewood- Manor Nursing Home & Rehabilitation Center andLocal 1199W , National Union of Hospi- tal & Nursing Home Employees, a Division of .RWDSU/AFL-CIO, Petitioner . Case 30-RC-2158 May 23, 1975 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, KENNEDY, AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was con- ducted in the above-entitled proceeding on November 9, 1973. Upon-the conclusion of the election, a tally of ballots was furnished the parties which shows that of approximately 190 eligible voters 124 cast ballots, of which 67 were fo^, and 49 against, the Petitioner; there were 8 challenged ballots. On November 15, 1973, the Employer filed timely objections to conduct affecting the results of the elec- tion. Pursuant to the Board's Rules and Regulations an investigation was conducted and, on January 8, 1974, the Regional Director. issued and served on the parties his Order Directing Hearing and Notice of Hearing in which he ordered a hearing on the issues raised by Employer's Objections 2, 3, 4, and 5.1 Pursuant thereto, a hearing was held on January 21, 1974, before Hearing Officer Douchan Pouritch. All parties par- ticipated in the hearing and were given full opportunity to examine and cross-examine witnesses and to in- troduce,evidence bearing on the issues. On February 7, 1974, the Hearing Officer issued and duly served on the parties his Report on Objections, in which he found that the Petitioner's conduct did not interfere with the results of the "election and recommended that the Em- ployer's objections be overruled. Thereafter, the Em- ployer filed timely exceptions to the Hearing Officer's report and the Petitioner filed a brief in opposition thereto. On May 31, 1974, the Board ordered that a further hearing be held for the purpose of receiving additional evidence with respect to the issues raised by Objection 4. 2 Pursuant to the Board's Order a hearing was held on June 27, 1974, before Hearing Officer Douchan Pou- ritch. All parties participated in the hearing and were given full opportunity to examine and cross-examine witnesses and to introduce evidence bearing on the is- sues. On October 24, 1974, the Hearing Officer issued his Supplementary Report on Objections, pertinent I The Employer withdrew Objections 1 and 6 2 The Board deferred ruhng on Objections 2, 3, and 5 pending disposition of the further hearing on Objection 4. parts of which are attached hereto as an appendix,--in which he recommended that Objection 4 be overruled and that the Petitioner be certified as bargaining repre- sentative. Thereafter the Employer filed exceptions and a supporting brief, and the Petitioner filed a response thereto. 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. -Upon the entire record in this case, the Board Binds: 1. The Employer is engaged in commerce within-the meaning of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Petitioner is a labor-organization claiming to represent certain -employees of the Employer. 3. A question affecting commerce exists concerning the representation of the employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. - 4. The parties stipulated, and we find, that the fol- lowing employees constitute a unit appropriate for the -purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees of the Employer at its nursing home currently located at 3710 North Oakland Avenue, Shore- - wood, Wisconsin, including licensed practical nurses, but excluding office clerical employees, professional employees, confidential employees, guards and supervisors as defined in the-Act. 5. The Union won the election held in November 1973. We agree with the Hearing Officer that the objec- tions to that election filed by the Employer should be overruled and that the Union is now entitled to a cer- tification. Our dissenting colleague disagrees with our overrul- ing of Objection 4. He believes it was "prejudicial" for the Regional Director to designate as Hearing Officer in the remanded hearing on Objection 4 the same per- son who presided at the first hearing in the case. We think this claim of prejudice is wholly unwarranted. It appears that the principle basis for the dissent's objection to the Hearing Officer's service at the second hearing is the assertion that certain findings made by him in his original report were "clearly contrary to the record." It ought to be recognized that this is a refer- ence to the fact that the Hearing Officer then found that Board employee Schlender's remark to Trakel, which is the basis for Objection 4, was made during the afternoon session of the balloting, when Carlin was the Union observer, rather than, as appears from the Hear- ing Officer's supplemental report, during the morning session, when Lynch was the observer. But this was 217 NLRB No. 187 SHOREWOOD MANOR NURSING HOME 1107 merely a factual inadvertence which, standing alone, would hardly have warranted another hearing and it surely did not disqualify the Hearing Officer from fur- ther participation in the case. To the extent that the dissent claims prejudice in the assignment of the same Hearing Officer because he discredited testimony given by Trakel at the first hear- ing and, "Equally predictable," at the second hearing, it needs to be pointed out that Trakel's own testimony at the second hearing that no voters were present when Schlender's remarks in question were made to her con- clusively demonstrates the correctness of the Hearing Officer's rejection of Trakel's testimony to the contrary given at the first hearing. As for Trakel's testimony at the second hearing that she communicated to other employees the fact learned from Schlender that he had been a union steward before becoming a Board em- ployee, the Hearing Officer rejected that testimony be- cause of Trakel's unsatisfactory recollection and hesi- tancy in testifying. Our study of the record discloses support for the Hearing Officer's credibility resolutions and the dissent points to nothing which reflects ad- versely upon it. It must not be overlooked here that our real concern is with what Schlender said to TrakeJ rather than with whether Trakel repeated what he said to other em- ployees. The case was remanded on that precise issue and there is now no factual dispute about it. Schlender simply related his prior experience in labor-manage- ment relations as the reason, he believed, for his hiring by the Board.' Clearly, this is no basis for setting aside the election, and the dissent does not argue other- wise. Equally without merit is Member Kennedy's con- tinued insistence upon a remand for further evidence of an incident involving Schlender and a Board female clerical employee. In the room in which the election was held, there were four people (two observers, Schlender, and the clerical), three chairs, and a bed used by the Employer for training purposes. In the midst of a "lot of joking," as described by Trakel who related the incident, Schlender invited the clerical to sit on the bed. This is all there is to the incident. Nobody suggests that anything more or different happened. We therefore perceive no need for a hearing to inquire further into the matter nor any reason for believing that the incident could have had any effect on the voters or the election or the sanctity of the Board's processes. Accordingly, having considered the objections, the Hearing Officer's reports, and the exceptions and briefs, we hereby adopt the Hearing Officer's findings, 3 Schlender, no longer employed by the Board, was at the time of the election a student at the University of. Wisconsin, employed under a work- study program sponsored by the Federal Government. conclusions , and recommendations4 and shall certify the Union. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Local 1199W, National Union of Hospital & Nursing Home Employees, a Division of RWDSU/AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment. MEMBER KENNEDY, dissenting: L do not agree with my colleagues' adoption of the Hearing Officer's recommendation that Objectian 4 be overruled and that the Petitioner be certified. The issue involved in this second hearing conducted on the Employer's objections was a statement by the Board agent that he believed that he had received his part-time job with the Board because he had been a union steward on his previous job. In the first hearing, Trakel was the Employer's principal witness with re- spect to this objection. The Hearing Officer discredited Trakel as a witness and recommended that the objec- tion be overruled. The Board directed a second hearing because the Hearing Officer's report was unsatis'fac- tory. Certain findings of ,the Hearing Officer were clearly contrary to the record. The Hearing Officer who had conducted the first hearing was designated by the Regional Director as the Hearing Officer in the second hearing. Predictably, Trakel was again the Em- ployer's principal witness, Equally predictable, the Hearing Officer discredited her testimony and recom- mended the objection be overruled. The designation of the same Hearing Officer at the second hearing is prejudicial. I dissented as to the lim- ited scope of the hearing with respect to the Board's agent's conduct.' Under these circumstances, I am not prepared to find that the election was conducted in a manner that would comport with the impartiality and competency expected of the Board in the conduct of its 4 Employer's exceptions raise no material or substantial issues of fact or law warranting reversal of the Hearing Officer's findings and recommenda- tions with respect to Objections 2, 3, and 5. $ In support of Objection 4, the Employer offered evidence of verbal exchanges between a male Board agent and a female Board agent with respect to a bed in the polling place which it asserts destroyed the proper atmosphere required in an election The Hearing Officer made no finding with respect to this evidence in overruling the objection. I believe that in determining whether the totality of the Board agents' conduct met the standards that the Board expects of its Board agents, the scope of the second hearing should have included the conduct of Board agents in the polling area. 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elections and cannot join my colleagues in overruling this objection. APPENDIX FINDINGS OF FACT AND RECOMMENDATIONS The representation election took place between the hours of 6 :30 a.m ., to 8:00 a .m. and 2 :00 p.m . to 4:30 p.m. on November 9, 1973 , in the Employer's class- room . Present at the polling place throughout the morning period of the election were James Schlender, Debra Trakel_and Mary Lynch . James Schlender, the Board Agent who conducted the election , was a college student employed part-time by the Milwaukee Region of the National Labor Relations Board to conduct rep- resentation elections . Debra Trakel , the observer for the Employer at the election , was a secretary employed by the nursing home at the time of the election. Mary Lynch , the observer for the Union at the election, was an employee in the voting unit at the time of the elec- tion. During a lull in the voting in the morning voting period at about 7:15 a.m., Trakel asked Schlender how he had got his job as an NLRB agent. Schlender replied that he was a student at the University of Wisconsin, Milwaukee branch, and that he had written on his application at the University form that he had pre- viously been a union steward at his former job. Schlender told Trakel that he felt that he had gotten his job with the NLRB because he had been a union stew- ard at his previous job. At the second hearing , Trakel and Mary Lynch testified that they were the only in- dividuals present when Schlender made the above re- marks. In the afternoon voting period , Schlender and Trakel were present . However , Mary Lynch was replaced by Kattie Carlin as union observer. Based on the uncontradicted testimony of Trakel and Lynch at the second hearing , I fmd that Trakel and Lynch were the only persons present when .Schlender gave his opinion as to why he had obtained his job as a Board agent. At the second hearing Miss Trakel, the Employer's observer claimed that during the break in the election, she told several employees who were eligible to vote in the election , but who had not yet voted that Schlender had been a union steward before becoming an NLRB agent . However, since Miss Trakel could not remember the names of any of these employees and her testimony on this subject was hesitant, I am discounting Miss Trakel's testimony that during the break between vot- ing periods , she informed several eligible employees who had not yet voted that Schlender had been a union steward. In any event , I am of the opinion that even if the observer for the Employer had informed eligible voters before they had voted that Schlender had been a union steward before becoming a Board agent , this is not ground for setting the election aside . In this case, there is no evidence that any agent of the Petitioner during the break between voting periods informed eligi- ble employees before they had voted that Schlender had been a union steward in an attempt to influence the vote of these employees. At the second hearing, Mary Lynch, the Union ob- server, testified to the effect that at no time during the day of the election did she inform anyone of Board Agent Schiender 's opinion as to why he had got his job with the Board . I credit the above -testimony of Mary Lynch . During her testimony , Debra Trakel never claimed that she had informed anyone before the polls closed at 4 :30 p.m. on November 9, 1973 , of Schlen- der's opinion as to how he got his job. Based on the testimony of Trakel and Lynch, I fmd that with the possible exception of Mary Lynch, the Union observer, no eligible voter heard or was aware of Schlender's opinion as to how he may have got his job before they had cast their ballot in the representation election. I therefore conclude that Schlender 's expressed opin- ion as to how he may have gotten his job could not have effected the votes of the employees . However , this does not dispose of the issue since this is not the only test to be applied. In Athbro Precision Engineering Corp., 166 NLRB 966 (1967), the Board states: The Board in conducting representation elections must maintain and protect the integrity and neu- trality of its procedures. The commission of an act by a Board Agent conducting an election which tends to destroy confidence in the Board 's election process , or which could reasonably be interpreted as impuning the election standards we seek to maintain , is a sufficient basis for setting aside that election. Applying the above test, I fmd that the Board Agent's opinion as to the reason why he had been hired by the NLRB expressed in a casual conversation with the Employer's observer did not compromise the Board's standards. Accordingly , it is recommended that Objection No. 4 be overruled in its entirety. Conclusion and Recommendation: Upon the findings of fact made herein and the princi- ple of laws discussed above , the undersigned recom- mends that the Employer 's Objections to the Election and to the Conduct Affecting the Results of the Elec- tion be overruled in their entirety, and that Certifica- tion of Representative issue.