O'Brien Memorial

National Labor Relations Board - Board Decisions

Mar 31, 1993

310 N.L.R.B. 943 (N.L.R.B. 1993)

943
310 NLRB No. 155
O’BRIEN MEMORIAL
1 The Employer requested review of the Regional Director’s over-
ruling of Objections 3, 5, 11, and 12, without a hearing. The Em-
ployer’s request for review of Objection 5 was limited to that por-
tion of the objection which alleged that the Petitioner made
antisemitic remarks prior to the election.
In denying review of the Regional Director’s overruling of Em-
ployer’s Objection 3, to the extent that the Regional Director’s reli-
ance on the absence of evidence of motive can be interpreted as re-
quiring evidence of subjective intent, it is disavowed. The evidence
presented by the Employer in support of this objection fails to estab-
lish a prima facie case of objectionable conduct as it is undisputed
that the conduct involved third parties, and their conduct did not cre-
ate a general atmosphere of fear and reprisal rendering a free elec-
tion impossible. Westwood Horizons Hotel, 270 NLRB 802, 803
(1984). Moreover, there is no evidence linking the conduct in ques-
tion to the Petitioner’s campaign as in the decisions cited by the Em-
ployer. See Futuramik Industries, 279 NLRB 185 (1986); and ARA
Services v. NLRB, 712 F.2d 936 (4th Cir. 1983). For the reasons set
out by the Regional Director in his Supplemental Decision, and by
Member Raudabaugh in his concurring opinion, the Regional Direc-
tor properly overruled Employer’s Objection 3. In the absence of any
evidence linking the conduct to the Petitioner’s campaign, we find
any speculation as to why the four individuals filed the charge to
be both unwarranted and unnecessary.
O’Brien Memorial and Local 627, Service Employ-
ees International Union, AFL–CIO, CLC, Peti-
tioner. Case 8–RC–14734
March 31, 1993
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which considered the Employer’s request for re-
view of the Regional Director’s Supplemental Decision
(the pertinent portions of which are attached). The re-
quest for review is denied as it raises no substantial
issues warranting review.1
MEMBER RAUDABAUGH, concurring.
I believe that the conduct alleged in Employer’s Ob-
jection 3 could reasonably tend to interfere with the
right of Licensed Practical Nurse (LPN) Schuster to
make a free and uncoerced choice in the election. In
this regard, I note that Schuster was a vocal critic of
the Union and that her four accusers were principal
supporters of the Union. Their accusation was that she
had physically abused a patient. Such an accusation
could lead to a loss of her LPN license and to state
sanctions, not to mention her emotional pain and suf-
fering. Apparently, there was no evidence to support
the accusation. In these circumstances, Schuster could
reasonably conclude that the cause of the accusation
was her opposition to the Union. In my view, it would
be outrageous if an LPN’s license and reputation were
placed in jeopardy simply because of her Section 7 be-
liefs concerning the Union.
However, I nonetheless conclude that the conduct
here does not warrant setting aside the election. In this
regard, I note the evidence is insufficient to establish
that the four accusers were agents of the Union. Fur-
ther, there is no showing that the conduct created ‘‘a
general atmosphere of fear and reprisal.’’ See
Westwood Horizons Hotel, 270 NLRB 802 (1984).
Thus, I agree with my colleagues that the election
should not be set aside.
APPENDIX
SUPPLEMENTAL DECISION AND ORDER
DIRECTING HEARING ON OBJECTIONS
Pursuant to a Decision and Direction of Election issued by
me on July 23, 1992, an election was conducted on August
26, 1992, among employees of the Employer in the fol-
lowing-described unit:
All full-time and regular part-time service and mainte-
nance employees, including licensed practical nurses,
nursing aides/assistants, nursing aide coordinators, as-
sistant nursing aide coordinators, orderlies, dietary
aides, cooks, housekeepers, laundry employees, physical
therapy aides, occupational therapy aides, infection con-
trol aides, activities employees, social service employ-
ees, maintenance employees, and medical records em-
ployees, employed at the Employer’s Masury, Ohio fa-
cility, but excluding all office clerical employees, ad-
ministrators, directors of nursing, dietary supervisors,
registered dieticians, aides supervisors, housekeeping
supervisors, laundry supervisors, and professional em-
ployees (including registered nurses), guards, and super-
visors as defined in the Act.
The tally of ballots issued after the elections shows that
of the approximately 154 eligible voters, 160 cast ballots, of
which 88 were for and 60 against the Petitioner. There were
12 challenged ballots, a number insufficient to affect the re-
sults of the election. On September 2, 1992, the Employer
filed timely objections to conduct affecting the result of the
election, a copy of which was duly served on the Petitioner.
Objection 3
In this objection, the Employer asserts that the Petitioner,
through its officers, agents, and those acting on its behalf,
made fraudulent accusations of patient abuse against an em-
ployee, thus creating an atmosphere of fear, intimidation, and
coercion.
In support of this objection, the Employer proffered the
testimony of its in-house counsel, John Daliman, and others
that employees Linda Gill, Kathleen Mason, Tammy Oden,
and Cheryl Holloway, who are allegedly several of Peti-
tioner’s principal supporters, presented Daliman with a writ-
ten statement, containing accusations against LPN Elaine
Schuster, a known critic of the Petitioner. Daliman will fur-
ther testify that these accusations, if true, would have estab-
lished that Schuster had engaged in patient abuse, which
would have been grounds for her dismissal, loss of her nurs-
ing license, and possible state sanctions against the Em-
ployer. Daliman will testify that he fully investigated the
matter and found no merit to the allegations.
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Employer argues that this situation is analogous to
these where it has been deemed objectionable for either an
employer or union adherent to threaten to report employees
to the appropriate authorities as illegal aliens, unless the em-
ployees support their position in a representation election,
citing Futuramik Industries, 279 NLRB 185 (1986), and ARA
Services v. NLRB, 712 F.2d 936 (4th Cir. 1983).
First, I must note the lack of any proffered evidence which
would tend to establish that the Petitioner was in any way
responsible for the conduct in question. Second, no evidence
was proffered which would establish, or even indicate, that
these individuals were motivated by anything other that a le-
gitimate concern for the welfare of the residents at the Em-
ployer’s facility. My reading of the cases cited by the Em-
ployer had lead me to conclude that evidence of improper
motive is a necessary element of establishing that this type
of conduct is objectionable. Accordingly, I have determined
to overrule this objection.
Objection 5
In this objection, the Employer asserts that the Petitioner,
in newsletters it distributed to employees prior to the elec-
tion, made threatening statements, including antisemitic re-
marks.
In support of this objection, the Employer proffered copies
of the newsletters in question, which on their face indicate
they are from the Petitioner and contain some articles written
by its officers, including the Petitioner’s president. The spe-
cific portion of the newsletters on which the Employer relies
is a reference to ‘‘a small scale war’’ contained in one article
authored by an employee and a cartoon which depicts a
meeting conducted by the Employer as taking place in a
‘‘Gestapo Meeting Hall’’ where the employees are chained
to their chairs.
As for the ‘‘small scale war’’ reference, it occurs in a
paragraph where others, apparently nonunion employees, are
accused by the author of starting this so-called war. Nowhere
therein is there an appeal for escalating the perceived battle.
In fact, the author urges her audience to neither believe nor
spread rumors, to show more consideration to fellow employ-
ees, and to do their jobs better than before. When taken in
context, this article cannot be characterized as objectionable.
The Employer correctly notes that in Sewell Mfg. Inc., 138
NLRB 127 (1962), the Board set forth the criteria for evalu-
ating the objectionable nature of racial appeals made by a
party to a representation election. There, the Board noted that
if a party deliberately seeks to overstress or exacerbate racial
feelings by irrelevant, inflammatory appeals, that would con-
stitute a basis for setting aside an election. The problem with
Respondent’s argument is that the cartoon, however tasteless
it may be, cannot reasonably be construed as a racial appeal.
At worse, the reader of the cartoon could conclude only that
the Employer was engaging in ‘‘Gestapo’’ tactics in holding
these meetings. Cartoons and other comments by a union or
an employer’s actions are not normally objectionable con-
duct, even if in poor taste or inaccurate. In Del Rey
Tortillerie, 272 NLRB 1106 (1984), the court found that a
union did not engage in objectionable conduct when it dis-
tributed literature to employees which accused the employer
of engaging in scare tactics and false promises and contained
cartoons lampooning fictional schemes by an unnamed em-
ployer against the employees. In an earlier case Cormier Ho-
siery Mills, 230 NLRB 1052 (1977), the Board found that a
union’s accusation, that an employer had manipulated its fi-
nancial situation to deprive employees of their profit-sharing
moneys, was not objectionable.
In short, it is clear that one party has great latitude to
comment on the conduct of another during an election cam-
paign, without engaging in objectionable conduct. See also
Alson Industries, 230 NLRB 735, 738 (1977). The one iso-
lated cartoon in question does not cross that line. Accord-
ingly, I have determined to overrule Objection 5.
Objections 11 and 12
In these objections, the Employer argues that the Petitioner
interfered with the election by the conduct of its officers,
agents, and those acting on its behalf occurring in the Em-
ployer’s parking lot during the election.
In support of these objections, the Employer proffers the
testimony of its owner, John Masternick; its president, John
J. Masternick; and its in-house counsel, John P. Daliman,
that throughout the day on August 26, 1982, prounion em-
ployees were gathered in the Employer’s parking lot, accom-
panied a portion of the time by the Petitioner’s representative
Timko, yelling and chanting, ‘‘Vote Yes’’ appeals to all who
entered and left the facility.
First, I note that there is no evidence presented, or even
a claim made, that contact took place inside the polling area.
Therefore, the conduct alleged cannot be objectionable or
violative of the rule set forth in Milchem, Inc., 170 NLRB
362 (1968). In fact, the Employer’s argument is that this con-
duct constitutes a ‘‘captive audience’’ meeting by the Peti-
tioner, violative of the prohibition on such gatherings within
24 hours of a representation election, as set forth in Peerless
Plywood, 107 NLRB 437 (1953). The Board and courts have
primarily, if not exclusively, considered potential Peerless
Plywood violations by a union in cases where it employs a
sound truck to broadcast campaign appeals outside an em-
ployer’s facility on the day of an election. It is quite clear
that the Board will not find such conduct to be objectionable
absent clear evidence that the appeals were loud enough to
be heard inside the employer’s facility while employees were
actually working and therefore unable to avoid the cam-
paigning. Compare United States Gypsum Co., 115 NLRB
734, 735 (1956), with Underwood Corp., 108 NLRB 1368,
1369 (1954). Further, it has been noted that exhortations to
vote yes are not a ‘‘speech’’ within the Peerless Plywood
doctrine. Crown Paper Board Co., 158 NLRB 440, 443
(1966). There is no evidence or claim that, in this case, the
shouting of these employees could be heard inside the facil-
ity at any time or that it consisted of any appeal which re-
sembled a ‘‘speech.’’ It is true that the court in Industrial
Acoustics Co. v. NLRB, 912 F.2d 717 (4th Cir. 1990), re-
jected as irrelevant the distinction as to whether the sound
truck could be heard inside the facility. However, in that
case, it is clear that the message being broadcast consisted
of appeals relating to wages and benefits, which more closely
resemble ‘‘speeches’’ than the ‘‘vote yes’’ appeals the Em-
ployer alleges to have taken place in this instance. In any
event, I am bound to follow Board precedent where there is
a dispute between it and an appellate court. Iowa Beef Pack-
ers, 144 NLRB 615 (1963). Accordingly, I find no Peerless
Plywood violation on the facts alleged to exist by the Em-
ployer and, therefore, overrule Objections 11 and 12.
IT IS FURTHER ORDERED that Employer’s Objections 1, 3,
5, and 11–13 be overruled for the reasons noted above.