Seton Medical Center/Seton Coastside

National Labor Relations Board - Board Decisions

Feb 20, 2014

360 N.L.R.B. 302 (N.L.R.B. 2014)

302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 49
Seton Medical Center/Seton Coastside and National
Union of Healthcare Workers (NUHW), Peti-
tioner and SEIU United Healthcare Workers-
West (SEIU–UHW), Intervenor. Case 20–RC–
073334
February 20, 2014
DECISION AND DIRECTION OF SECOND
ELECTION
BY MEMBERS MISCIMARRA, HIROZAWA
AND SCHIFFER
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held March 21, 2012, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 301 ballots for Intervenor
SEIU United Healthcare Workers-West (SEIU–UHW),
271 for Petitioner National Union of Healthcare Workers
(NUHW), and 19 against participating labor organiza-
tions.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has adopted the hearing officer’s
findings1 and recommendations only to the extent con-
sistent with this Decision and Direction of Second Elec-
tion.
We adopt, in limited part, the hearing officer’s finding
that Seton Medical Center/Seton Coastside (Seton or
Employer) interfered with the election by discriminatori-
ly allowing SEIU–UHW preferential access to its Seton
Medical Center facility for electioneering purposes. In
setting aside the election, we rely (as explained below)
only on the fact that, in connection with the campaign,
the Employer permitted exclusively SEIU–UHW repre-
sentatives to solicit employees on worktime, in violation
of the Employer’s own facially neutral prohibition and
without any asserted basis in the access-related provision
of the collective-bargaining agreement between Seton
and SEIU–UHW. Because we find that the preferential
access for worktime solicitation is a sufficient basis to
order a second election, we need not and do not reach
any other allegations of objectionable conduct here.

1 SEIU–UHW and the Employer have excepted to some of the hear-
ing 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 have
carefully examined the record and find no basis for reversing the find-
ings. In addition, some of SEIU–UHW’s exceptions allege that the
hearing officer’s report demonstrates bias and prejudice. On careful
examination of the recommendations and the entire record, we are
satisfied that SEIU–UHW’s contentions are without merit.
Discussion
NUHW filed 31 objections. Our decision focuses on
Objections 21–23 in which the Petitioner alleges that the
Employer discriminated in favor of SEIU–UHW, the
incumbent union, with respect to access, solicitation, and
distribution. We find that the election should be set aside
because the Employer routinely condoned worktime so-
licitation by nonemployee representatives of SEIU–
UHW while denying the same opportunities to nonem-
ployee representatives of NUHW.2
Seton maintains a written policy on solicitation and
distribution of written material which provides that
nonemployees “may not, at any time, solicit or distribute
literature or other items of any kind or for any purpose
on Seton Medical Center/Seton Coastside property.”
Solicitations and distributions are prohibited during
worktime and in immediate patient care areas at any
time. Work areas are defined to exclude employee
lounges and break rooms. Employees were specifically
notified by the Employer that unions were not allowed to
campaign in work units or to disrupt hospital business or
patient care. Nevertheless, the evidence shows that the
Employer routinely condoned worktime solicitations by
nonemployee representatives of SEIU–UHW while
denying the same opportunities to nonemployee repre-
sentatives of NUHW.
Among the evidence of such disparate treatment is a
preshift “huddle” in the environmental services depart-
ment (EVS), attended by nonemployee SEIU–UHW rep-
resentatives, who engaged in electioneering and solicited
employee support during worktime. With approximately
15 employees in attendance at the huddle, the EVS su-
pervisor told employees that SEIU–UHW representatives
were there to speak with them and that the employees
could stay or leave. With the supervisor still present,
SEIU–UHW representatives proceeded to campaign for
support among the employees in the upcoming election.
NUHW witnesses described several other instances of
nonemployee SEIU–UHW representatives soliciting
votes and attempting to persuade employees to support
SEIU–UHW in the election while the employees were on
worktime. Deborah Pitambar, a client services repre-

2 The Board has long held that it is unlawful and objectionable for
an employer to facilitate worktime electioneering by one union while
denying the same access to a rival union. See, e.g., Duane Reade, Inc.,
338 NLRB 943, 943–944 (2003), enfd. 99 Fed. Appx. 240 (D.C. Cir.
2004); Raley’s, Inc., 256 NLRB 946, 957 (1981), affd. on remand 272
NLRB 1136, 1136 fn. 2 (1984); see also Laub Baking, 131 NLRB 869,
871–872 (1961) (finding no violation where the stepped-up frequency
of the incumbent union’s visits to the plant “was not done with the
connivance” of the employer, and where the employer “sought to cur-
tail” the incumbent’s electioneering at the plant when brought to its
attention by the petitioner).
SETON MEDICAL CENTER/SETON COASTSIDE 303
sentative in the radiology department, testified that a
SEIU–UHW representative solicited her support and
electioneered while Pitambar was on duty in the hallway
and at her workstation, the front desk. Juan Pedroza, an
ultrasound technician, witnessed and overheard a SEIU–
UHW representative campaigning in the ultrasound con-
trol room and outside of break rooms in work areas in his
department. Merle Aragon, an environmental services
employee, saw a SEIU–UHW representative campaign-
ing in work areas and authenticated a photograph of a
SEIU–UHW representative conversing with employees
in the doorway to a patient’s room. Dee Ann Doody,3 a
switchboard operator, frequently witnessed SEIU–UHW
representatives handing out election related flyers in
work areas. On two occasions, she saw a SEIU–UHW
representative discuss and distribute an election flyer to
an employee while the employee was working at the
switchboard operator’s station.
It is clear, moreover, that management was on notice
that SEIU–UHW staffers were appealing to employees
on worktime. As described above, management facilitat-
ed SEIU–UHW organizers speaking to employees about
the election during the EVS preshift huddle. More
broadly, in a March 12 letter, NUHW complained to Se-
ton that “[e]mployees are being bothered while on duty
by SEIU–UHW paid staff,” and that SEIU–UHW was
electioneering and soliciting “during working time.”
NUHW also reported that SEIU–UHW representatives
were included in department staff meetings for the pur-
pose of campaigning. Seton never responded to
NUHW’s letter and never addressed the allegations or
took any action responsive to the reports of worktime
solicitation.
Although it would have been objectionable in any
case, the preferential treatment given to SEIU–UHW also
was inconsistent with the Employer’s own stated rules

3 On p. 22 of the report, the hearing officer incorrectly refers to
Doody as Dee Ann Dowdy.
and policies discussed above. Seton’s solicitation and
distribution policy explicitly prohibits worktime solicita-
tion. In addition, at the onset of the critical period, Seton
informed employees that while “unions are allowed to
campaign on hospital property, they are not allowed to
do so in work units nor are they allowed to disrupt hospi-
tal business or patient care.” Seton knowingly waived
this policy for SEIU–UHW representatives, but not for
NUHW representatives.4 There is no claim here that
Seton’s policy was inconsistent with the collective-
bargaining agreement in effect during the critical period
or that the agreement required Seton to grant this particu-
lar type of access to SEIU–UHW.5
In sum, Seton discriminated against NUHW by allow-
ing SEIU–UHW representatives, but not those of
NUHW, to address electioneering appeals to employees
while they were working. Especially considering the
relatively narrow margin of victory in the election, we
find that the objectionable conduct is sufficient to war-
rant a second election.
[Direction of Second Election omitted from publica-
tion.]

4 See Duane Reade, Inc., supra, 338 NLRB at 944.
5 The Employer’s rule against solicitation by employees on work-
time reflects a long-established and well-defined legal distinction be-
tween worktime and nonworktime solicitation. The collective-
bargaining agreement, in turn, provided that a SEIU–UHW representa-
tive was “allowed access to visit the facility at all times to ensure com-
pliance with this Agreement and to conduct Union business.” No party
argues that this contractual provision gave SEIU–UHW representatives
a contractual right to contact employees for campaign purposes during
their worktime. Nor is there evidence that Seton had a prior history of
permitting worktime solicitation, by anyone, at its facilities.
With respect to the issue of worktime solicitation, then, this case
does not require us to decide whether or when an incumbent union’s
preferential access, predicated on a collective-bargaining agreement or
an established past practice, would be grounds for setting aside an
election. Cf. West Lawrence Care Center, 308 NLRB 1011, 1012
(1992) (employer violated broad contractual visitation clause by seek-
ing to limit incumbent union’s access, during election campaign, to
contract administration).