Shawnee Manor

National Labor Relations Board - Board Decisions

Aug 27, 1996

321 N.L.R.B. 1320 (N.L.R.B. 1996)

1320
321 NLRB No. 171
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Cf. Jet Port Express, 284 NLRB 739 (1987) (Employee was not
a special agent of the union when he wagered a six-pack of beer
on the outcome of the election because the conduct ‘‘could not have
been construed by any reasonable person as representing ‘union pol-
icy’’’ and it was not alleged to have occurred during card solicita-
tion.)
2 The Employer presented evidence that during the critical period
an employee told other employees that ‘‘she thought some of the
Employer’s nurses treated black employees worse than white em-
ployees.’’ (Evidence was also presented concerning similar remarks
made outside the critical period.) There were also rumors that the
election was a ‘‘black-white’’ issue.
3 See Coca-Cola Bottling Co., 273 NLRB 444, 445 (1984) (‘‘The
question of whether employees have been unfairly treated, for what-
HCF Inc. d/b/a Shawnee Manor and District 1199
SEIU, The Health Care and Social Service
Union, AFL–CIO, Petitioner. Case 8–RC–15261
August 27, 1996
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on September 1, 1995, and the Regional Direc-
tor’s supplemental report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows
68 for and 61 against the Petitioner, with 5 challenged
ballots, an insufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief, has adopted the Regional Direc-
tor’s findings and recommendations as further dis-
cussed below, and finds that a certification of rep-
resentative should be issued.
1. The Employer has excepted, inter alia, to the Re-
gional Director’s finding that an employee who alleg-
edly made threats of violence in the course of solicit-
ing union authorization cards was not a special agent
of the Union under Davlan Engineering, 283 NLRB
803 (1987). We agree with the Regional Director that
under the circumstances presented here, the card solici-
tor was not a special agent of the Union.
In support of Objection 1, the Employer presented
evidence that, on the day before the election, a bar-
gaining unit employee approached another employee
and solicited her to sign a union authorization card.
The card solicitor allegedly stated that the employee
had better sign a card because if she did not, the
Union would come and get her children and it would
also slash her car tires. In recommending that Objec-
tion 1 be overruled, the Regional Director found that
the card solicitor was not a special agent of the Union
under Davlan because the statements allegedly made
by the employee did not involve representations about
the Union’s fee-waiver policies. In its exceptions the
Employer argues that Davlan is not limited to state-
ments concerning fee-waiver policies, and should apply
to threats of violence made in the course of card solici-
tation.
In Davlan, the Board stated that ‘‘in the absence of
extraordinary circumstances, employees who solicit au-
thorization cards should be deemed special agents of
the union for the limited purpose of assessing the im-
pact of statements about union fee waivers or other
purported union policies that they make in the course
of soliciting.’’ 283 NLRB at 804 (emphasis added).
Although the Employer is correct that Davlan encom-
passes statements made during card solicitation con-
cerning purported union policies other than fee-waiver
statements, we do not agree with the Employer that it
encompasses threats of union violence under the cir-
cumstances presented here. In our view, alleged threats
of violence, even when made in the course of card so-
licitation, cannot be construed by any reasonable per-
son as representing ‘‘purported union policies.’’1 Thus,
where, as here, threats of union violence made by card
solicitors cannot reasonably be viewed to be within the
scope of their authority, a special agency relationship
does not arise, and such threats are not attributable to
the Union. Accordingly, we shall evaluate such con-
duct under the third party standard. We agree with the
Regional Director that, viewed under the standard for
third-party conduct, the evidence presented by the Em-
ployer, even considered cumulatively, is insufficient to
warrant setting aside the election. Westwood Horizons
Hotel, 270 NLRB 802 (1984).
2. The Employer has excepted to the Regional Di-
rector’s failure to apply the Board’s Sewell Mfg. Co.,
138 NLRB 66 (1962), analysis to its evidence concern-
ing appeals to racial prejudice.2 In recommending that
Objection 2 be overruled, the Regional Director found
that the alleged racial remarks were made by a
prounion employee and could not be attributed to the
Union. He further noted, citing Benjamin Coal Co.,
294 NLRB 572, 573 (1989), that the rule in Sewell
‘‘concerns prejudiced campaign propaganda issued by
a party to the election, not expressions of employee
bias independent of the party’s own actions.’’ In its
exceptions the Employer argues, inter alia, that Sewell
applies to third-party conduct and that under that
standard the election should be set aside.
Even assuming arguendo that Sewell is applicable to
conduct by third parties standing alone, we do not find
the remarks made in this case sufficient to warrant set-
ting aside the election under that standard. The evi-
dence presented by the Employer, even if credited,
does not rise to the level of a sustained appeal to racial
prejudice. The remarks do not seek to overstress and
exacerbate racial feelings by irrelevant, inflammatory
appeals.3 Because we find the remarks did not so in-
1321SHAWNEE MANOR
ever reason, is always a legitimate topic of discussion in a union
campaign.’’).
4 Sewell, 138 NLRB at 72.
In view of the fact that Sewell is distinguishable, Chairman Gould
finds it unnecessary to decide whether he agrees with the Board’s
holding in Sewell.
5 In Carrington Health Care Center v. NLRB, 76 F.3d 802 (6th
Cir. 1996), the court remanded for a hearing regarding whether
union campaign cartoons may have blatantly exploited the prejudices
of the voters. Here, as noted and unlike Carrington, there is no
showing that the Union was responsible for any of the alleged em-
ployee remarks. Further, viewing the Employer’s evidence in the
light most favorable to the Employer, as the court did in Carrington,
we have found no basis to conclude that there was a sustained ap-
peal to racial prejudice.
flame and taint the atmosphere in which the election
was held that ‘‘a reasoned basis for choosing or reject-
ing a bargaining representative was an impossibility,’’4
we agree with the Regional Director that Objection 2
should be overruled.5
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for District 1199 SEIU, The Health
Care and Social Service Union, AFL–CIO, and that it
is the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All full-time and regular part-time service and
maintenance employees, including licensed prac-
tical nurses, medical records clerks, patient fund
coordinators, maintenance employees, activity
aides, certified nursing assistants, physical therapy
aides, cooks, food service workers, maintenance
assistants, housekeeping and laundry employees
but excluding all registered nurses, professional
employees, department heads, managers, guards
and supervisors as defined in the Act.
MEMBER COHEN, dissenting in part.
I would hold a hearing to resolve factual issues re-
lating to whether the card solicitor was a special agent
of the Union. These issues would include: whether the
Union gave the cards to the solicitor, with the under-
standing that she would solicit employees to sign
them; whether the Union permitted or acquiesced in
the solicitations. See Davlan Engineering, 283 NLRB
803, 804 (1987). If the evidence establishes that there
was such agency, I would then consider the issue of
whether threatening conduct by the agent, in the course
of such solicitation, should be regarded as union con-
duct for purposes of passing on objections to an elec-
tion.