Masonic Homes of California

National Labor Relations Board - Board Decisions

Sep 18, 1981

258 N.L.R.B. 41 (N.L.R.B. 1981)

MASONIC HOMES OF CALIFORNIA
Masonic Homes of California, Inc. and Hospital and
Institutional Workers Union Local 250, Service
Employees International Union, AFL-CIO.
Case 32-CA-1206
September 18, 1981
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF SECOND
ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 16, 1979, the National Labor Rela-
tions Board issued a Decision and Order in the
above-entitled proceeding,' finding that Respond-
ent has engaged in and was engaging in unfair
labor practices within the meaning of Section
8(a)(5) and (1) of the National Labor Relations
Act, as amended, and ordered that Respondent
cease and desist therefrom and take certain affirma-
tive action to remedy such unfair labor practices.
Thereafter, on August 16, 1979, the Board filed
an application for enforcement of its Order with
the United States Court of Appeals for the Ninth
Circuit. On July 25, 1980, the court denied enforce-
ment and remanded the case to the Board, holding
that Respondent was entitled to a hearing on its
objections to the election in the underlying repre-
sentation proceeding relating to certain alleged mis-
representations made by the Union with regard to
the possibility of strikes in a health care facility and
the commission of an alleged unfair labor practice
by Respondent in questioning employees about
their union sympathies; an alleged illegal offer by
the Union to waive initiation fees; the alleged main-
tenance of a list of voters by the Union during the
balloting; and the alleged creation of an atmos-
phere of fear among the employees during the
campaign. 2 The Board, having accepted the court's
remand, by telegraphic order dated September 25,
1980, remanded this proceeding to the Regional
Director for hearing. On March 10, 1981, Adminis-
trative Law Judge Russell L. Stevens issued the at-
tached Decision in this proceeding. Thereafter, the
Charging Party Union filed exceptions and a sup-
porting brief, and Respondent filed cross-excep-
tions and a brief in support thereof and in opposi-
tion to the exceptions of the Union.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions, briefs,
240 NLRB 776.
2 624 F.2d 88 (1980).
258 NLRB No. 6
and the court's decision, which the Board has ac-
cepted as the law of the case, and hereby adopts
the Administrative Law Judge's findings3 and rec-
ommendations. 4
ORDER
It is hereby ordered that the Decision and Order
dated February 16, 1979, in this proceeding be, and
it hereby is, vacated, and that the complaint herein
be, and it hereby is, dismissed in its entirety.
:' The Charging Party and Respondent have excepted to certain credi-
bility findings made by the Administrative Law Judge It is the Board's
established policy not to overrule an administrative law judge's resolu-
tions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings.
4 The Administrative Law Judge,. in finding that the Union's business
representative. Jones, did not make an objectionable offer to aive initi-
ation fees in his conversation with employee Izquierdo. erroneously
stated that the Board has held that any promise to waive initiation fees in
order to be objectionable under .VL.R.B. v. Savair Manufacturing Com-
pany, 414 U.S. 226 (1974), must be unambiguous. See Inland Shoe Manu-
facluring Co. Inc., 211 NLRB 724, 725 (1974). However, we adopt his
recommendation that this objection be overruled, since, as he found, sub-
sequent to the above conversation, the Union distributed a letter to all
employees which clearly set forth a lawful fee waiver policy and clarified
the Union's waiver policy.
In adopting the Administrative Law Judge's recommendation that the
objections based on alleged misrepresentations of fact be oerruled, we
find it unnecessary to pass on his discussion of Sec. 8(a)(l) of the Act and
we disavow his characterization of the Employer's and the Union's cam-
paign statements as "scare tactics."
The Administrative Law Judge stated that employee Marlene Oliver
testified that she was confronted by six prounion employees at Respond-
ent's facility. It is clear from her testimony. however, that while walking
with five or six employees at Respondent's facility she was confronted by
two prounion employees in the group who demanded to know whether
she and the others had "signed up for the Union." Further. while we
agree with the Administrative Law Judge that neither this incident nor
those involving employees Izquierdo or Lovel ere objectionable. we do
not rely on his findings that none of the employees involved in the var-
ious incidents personally felt intimidated since whether such statements
were coercive is not determined by the subjective state of mind of the
hearer. Janler Plastic Mold Corporation. 186 NLRB 540 (1970); G. H.
He.ts. Incorporated, 82 NLRB 463, fn 3 (1949). We also note that the inci-
dents involving Izquierdo and Oliver, as well as Paperick's remarks to
Lovel, occurred before the petition was filed and, accordingly, are not
grounds for setting aside the election. The Ideal Electric and Manufactur-
ing Company, 134 NLRB 1275 (1961).
We agree with the Administrative Law Judge that the keeping of a list
comprised of hash marks and voters' names by the Union's observer.
Ashby, during the election, warrants setting the election aside. In agree-
ing that such conduct was not d mininis, however, we rely solely on
the Administrative Law Judge's findings that the list-keeping was done
continuously through the morning voting session and for a period during
the afternoon session, and that several employees observed the list-keep-
ing. Further. since Ashby kept a list comprised in part of names, we find
it unnecessary to pass on the Administrative Law Judge's statement that
the making of marks alone within the voters' sight would have the same
effect as the recording of names, or on his reliance on Downing's con-
duct which was not shown to have involved the recording of names. Fi-
nally, we disavow the Administrative Law Judge's reliance on Seabrook
Farms, Case 32-RC-379, a Decision not reported in volumes of Board
Decisions.
In view of our adoption of the Administrative Law Judge's recommen-
dation that the election be set aside based on the list-keeping by the
Union's observer, we find it unnecessary to pass on the issue of whether
the Union's leafne concerning the possibility of strikes in the health care
industry constituted a misrepresentation of law requiring the setting aside
of the election.
41
DECISIONS OF NATIONAL. LAO()R RELATIONS 3()ARD
IT IS FURTHER ORDIEREtI that the Decision and
Certification of Representative in Case 32-RC-159
be, and it hereby is, vacated, and that the proceed-
ing in that case be, and it hereby is, reopened and
remanded to the Regional Director for Region 32
to conduct a second election at such time as the
Regional Director deems appropriate.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
SI'ATEMENT 01 IHI- CASE
RussEll. L. ST-rvENS, Administrative Law Judge: This
matter was heard in Oakland, California, on November
26, 1980, and January 20, 1981. The complaint, issued
September 20, 1978, was based on a charge filed Septem-
ber 8, 1978, by Hospital and Institutional Workers Union
Local 250, Service Employees International Union,
AFL-CIO (herein called the Union). The complaint al-
leges that Masonic Homes of California, Inc. (herein
called Respondent), violated Section 8(a)(5) of the Na-
tional Labor Relations Act (herein called the Act), by re-
fusing to bargain collectively with the Union.
On January 27, 1978, the National Labor Relations
Board (herein called the Board) conducted an election in
Case 32-RC-159 among Respondent's employees to de-
termine whether or not those employees wished to be
represented by the Union for purposes of collective bar-
gaining between Respondent and the Union. There were
183 eligible voters who cast ballots, 93 in favor of the
Union, and 68 against the Union. On February 3, 1978,
Respondent filed timely objections to the conduct of the
election. On April 27, 1978, the Regional Director for
Region 32 of the Board issued a report which recom-
mended that all of Respondent's objections be overruled.
Respondent filed timely exceptions to the report. The
Board overruled the exceptions and certified the Union
as the collective-bargaining representative of employees
in the appropriate unit. No hearing was held on Re-
spondent's objections to the election at any stage of pro-
ceedings prior hereto. Respondent refused to bargain
with the Union, resulting in a charge by the Union that
Respondent had violated Section 8(a)(5) of the Act. On
October 16, 1978, in Case 32-CA-1206, counsel for the
General Counsel filed with the Board a Motion for Sum-
mary Judgment. On February 16, 1979, the Board issued
its Decision and Order, granting the General Counsel's
motion and ordering Respondent to bargain with the
Union upon the latter's request. On July 26, 1979, the
Board filed with the United States Court of Appeals for
the Ninth Circuit an application for enforcement of its
Order. On July 25, 1980, the Ninth Circuit denied the
Board's application and remanded the case to the Board
for further proceedings; i.e., for a hearing on Respond-
ent's objections to the election. That hearing was held as
aforesaid.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to argue orally. Briefs, which have
been carefully considered, were filed on behalf of the
Union and Respondent.
Issues
The only matters for the decision herein are those re-
manded to the Board by the Ninth Circuit, i.e., " . .
whether the alleged misconduct deprived Masonic em-
ployees of a free expression of choice." The Ninth Cir-
cuit stated, inter alia, "Masonic has made a prima facie
showing on questions of fee waiver, campaign misrepre-
sentation, the maintenance of a voter list, and voter in-
timidation." Those four objections are discussed infra.
A. Fee Waiver
Velia Izquierdo,' a senior nurses aide who has been
employed by Respondent for approximately 20 years,
testified that, as she was leaving Respondent's premises
one afternoon in early August, a union representative
(later identified by Izquierdo as Business Representative
Mark Jones), approached her, identified himself as a
union representative, handed her some literature that he
asked that she read, and also handed her a card, which
he asked that she read and sign "to save myself some ini-
tiation fees." On cross-examination, Izquierdo testified
that, although she was not told she would have to pay
an initiation fee if she did not sign the card, she assumed
that such would be the fact.2
Jones testified that, on December 20, 1977, the follow-
ing letter was distributed at Respondent's premises, . .
to every employee in the facilities that it could be:"
Dear Masonic Home Employee:
The members and staff of Local 250 wish you
and your family a Merry Christmas and a Happy
New Year.
We wish to inform you that by the action of the
Executive Board and membership of Local 250 that
the initiation fees are being waived for any employ-
ee who is employed or become employed at the
Masonic Home prior to a signed contract.
Union dues will begin only after you and your
fellow workers have agreed by secret ballot to a
Union Contract covering wages, hours, and condi-
tions of employment.
Sincerely,
HOSPITAL AND INSTITUTIONAL
WORKERS' UNION, LOCAL 250, SEIU, AFL-
CIO
Timothy J. Twomey
Secretary-Treasurer
I Individuals are referred to herein by their last names.
2 Fae McNamara. Respondent's housekeeping supervisor. testified
that. in October 1977. she ierheard a enrmployee tell four r five cm-
ployees. "If .c sign these cards now, c ill ,ino have to pay an initi-
ation fee." hat testimony has been carefull) considered, and is given ino
.eight.
42
MASONIC HOMES OF CALIFORNIA
Jones testified that he never made any statement to Iz-
quierdo, or to any other employee, that differed from the
Union's policy, which he explained as follows:
It's a policy that no initiation fees are asked for any
employees until there is a signed Union contract in
a facility and then the only people subject to initi-
ation fees were those people hired after the signing
of an enforceable contract.
Discussion
Izquierdo's version of her conversation with Jones is
credited.
In Savair,: the United States Supreme Court refused to
enforce an order of the Board directing an employer to
bargain with a union that had offered to waive initiation
fees for all employees who signed cards before the elec-
tion. In the case herein, there was no specific promise,
and Jones' words were ambiguous. Izquierdo's assump-
tion relative to Jones' statement was a logical and rea-
sonable one, but the Board has held that any promise, in
order for it to be objectionable, must be unambiguous. 4
Jones' testimony relative to the Union's policy, which is
in language outside the principles of Savair, was much
like the Union's letter to all of Respondent's employees,
discussed above, and is credited. There were 183 eligible
voters who cast ballots in the election; and there is no
evidence that any employee other than Izquierdo im-
pliedly or explicitly was told at any time prior to the
election anything in the nature of a Savair statement. The
Union's letter to all employees, written 4 months after
the statement to Izquierdo, makes it clear that the
Union's policy and its plans for Respondent's employees
were quite different from Jones' statement to Izquierdo
and were not objectionable. 5
Under such circumstances, there is no reasonable basis
on which to conclude that Jones' statement had any
effect upon the election.6 Respondent had the burden of
proving that the Union's coercion prevented a fair elec-
tion, and to overcome the presumption that the Board-
conducted election reflected the desires of Respondent's
employees.7 That burden was not met. This objection to
the election is without merit.
B. Alleged Misconduct and Misrepresentations of Fact
i. On several occasions prior to the election union rep-
resentatives, including Jones, distributed to Respondent's
employees on Respondent's premises several different
pieces of the Union's campaign literature. Included in the
literature was a document s which stated, inter alia:
N L.R. B. v. Savair Manufacturing Co.., 414 U.S. 270 (1973)
See, e.g., B. F Goodrich Tire Company. a Division of the B. F Gxd-
rich Company, 209 NLRB 1175 (1974): :L.R.B. v. Con-Pat, Inc., 509
F.2d 270 (5th Cir. 1975).
s Firestone Steel Producti Compan. a Dvisin of' iresione Tire and
Rubber Company, 235 NLRB 548 (1978); Western Refrigerator Co., Suhbid-
iary of the Itobart Manufacturing Co., 213 NL.R 227 (1974).
s Levitz Furniture Company of Santa Clara. Inc., 234 NLRI 1195
(1978).
* .AL.R.B v. i-City Linen Supply, 579 F.2d 51 (9th Cir. 1978):
N.L.R.B. v. Heath lhe Division/San Francisco. 566 F.2d 1367 (91h Cir
1978), cert. denied, 439 U.S. 832.
8 Resp. Eh. 2.
3. Then they line you up on the job in some de-
partments and point and say you look like a union
supporter (to further scare you).
5. They spread rumor after rumor about strikes,
about nurse aid training schools replacing you.
The following employees, who comprised the entire
upper level administrative staff of Respondent, testified
and denied that they took actions as alleged in the
Union's campaign literature, quoted above, and also
denied that they knew of any such actions on the part of
any employee of Respondent, or of any instructions by
Respondent's management for any employee to engage
in such activity: Velia Izquierdo, senior nurses aide; Jack
Hauser, director of resident services; Gregory Pontzious,
food director at times relevant herein but no longer em-
ployed by Respondent; James Brown, administrator of
the home for adults; Michael Fitz, employed at times rel-
evant herein as Respondent's assistant administrator but
no longer working for Respondent; Elwin Lamp, direc-
tor of facility services; Harold Boerst, director of trans-
portation, laundry and security services; Margaret Phil-
lips, business office manager; Faye McNamara, house-
keeping supervisor; Eleanor Farris, health director; Mary
Catherine Mehlhaff, supervisor of the personal care sec-
tion.
Izquierdo testified that Respondent "put out the first
information" concerning strikes, and that Respondent's
representatives "on a number of occasions" prior to the
election stated that there was a danger of strikes if the
Union won the election, with the danger of employees
losing their jobs if a strike occurred. Hauser testified that
the possibility of strikes was discussed with employees at
meetings held by Respondent; that he was aware of
rumors among employees concerning strikes; and that
Respondent issued a document concerning strikes. 9 He
said some employees talked with him about "what would
happen to their jobs" if there was a strike. Pontzious tes-
tified that he knew of rumors among employees concern-
ing strikes and replacement of employees, but that he
knew of no participation by any supervisor in such dis-
cussions among employees. Brown testified:
Q. You'd been running a campaign on the issue
of the Union election for some time, hadn't you?
A. Yes.
Q. And included as an aspect of that campaign
was this issue of strikes and the negative effect of
strikes on the employees at the facility. Isn't that
right?
A. Yes.
Brown further testified that some employees expressed to
him their "concern" about their jobs in the event of a
strike and that the subject of strikes and their possible ef-
fects on employees were discussed by management rep-
resentatives during meetings with employees. Boerst tes-
tified that he knew of discussions among employees in
December 1977 and January 1978 concerning possible ef-
fects of strikes. McNamara testified that, on one occa-
i' U. Eh I
43
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion, she overheard employees talking about strikes and
their possible adverse effects on employees.
Jones testified:
Q. Okay. Toward the end of the campaign could
you tell us whether or not the issue of strikes
became an issue of concern?
A. Yes, very much so. The Employer was con-
stantly alleging to the employees in the facility that
if the Union won an election there would be a
strike. The Union would force them to go on strike.
Q. Was that an issue that had become raised to
the Union in meeting, if you can recall?
A. Yes, numerous times.
Q. Had the Union raised the issue of strikes in the
campaign?
A. No. That was raised by the Employer.
Jones said the statements contained in Respondent's Ex-
hibit 2, items numbers 3 and 5, were based on complaints
and reports to the Union by Respondent's employees. °
Discussion
Items 3 and 5 of the Union's letter, quoted above, are
found to be false: (a) Respondent's witnesses, who are
named above as the entire administrative staff, were firm
and convincing in their denials of the Union's allegations
in its letter to employees, and their denials are credited.
(b) The Union presented no witness who testified to
having been lined up, pointed at, and accussed of being a
union supporter. Further, the Union presented no witness
who testified that Respondent spread rumor after rumor
about strikes, or to having been told that employees
would be replaced by nurses aide trainees. (c) Farris, Re-
spondent's health director, credibly testified that, at times
relevant herein, Respondent did not utilize the services
of a nurses aide training school, nor did Respondent
have any interns from a nurses aide training program,
nor were such schools or programs being discussed as
possibilities.
In General Knit,'' the Board reinstated the standard to
be applied in alleged misrepresentation cases, that earlier
had been enunciated in Hollywood Ceramics,'2 i.e.:
[A]n election should be set aside only where there
has been a misrepresentation or other similar cam-
paign trickery, which involves a substantial depar-
ture from the truth, at a time which prevents the
other party or parties from making an effective
reply, so that the misrepresentation, whether delib-
erate or not, may reasonably be expected to have a
significant impact on the election. [Footnote omit-
ted.]
10 Jones was unable, on cross-examination, to support this piece of tes-
timony about complaints with specific information. He testified relative
to a single alleged instance, when he talked at the gate to Respondent's
premises with the director of nursing (Farris), who allegedly stated, inter
alia, that "if the Union won the election they [the employees] could look
for other jobs .... " Farris denied that statement, and she is credited
This testimony by Jones is given no credence.
II General Knit of California. Inc., 239 NLRB 619 (1978, overruling
Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977), on this issue.
12 Hollywood Ceramics Company. Inc., 140 NLRB 221 (1962).
The fact of misrepresentations by the Union is clear, as
discussed above. The question is whether the misrepre-
sentations were substantial and would have an impact on
the election.
Relative to rumors of strikes, the record is not entirely
clear so far as some dates are concerned. However, it is
apparent that Respondent first mentioned to employees
the subject of possible strikes and their effects. Izquierdo
so testified and her testimony on that point is supported
by the record. Respondent put its thoughts in a letter to
employees, dated January 20. That letter is three pages
long, is strongly worded, and is explicit in its description
of strikes and their effects. The Union responded by its
own letter, discussed above. That letter is not dated, but,
so far as the record shows, Respondent first knew of it
late in the afternoon of January 25, as Brown credibly
testified. It is clear that Respondent's letter, as well as
employee conversations among themselves and with su-
pervisors, created much employee uncertainty, confu-
sion, and trepidation so far as strikes were concerned.
There is no basis on which to conclude or infer that Re-
spondent spread rumors concerning strikes and their ef-
fects, but it is apparent that Respondent's letter contrib-
uted to employee concern about that subject. Therefore,
it must be concluded that the Union's response relative
to strikes, while possibly an exaggeration or a stretching
of the facts, was not so far from the truth as to constitute
objectionable conduct. The Union merely met one scare
tactic with another.
The Union's letter went further than merely counter-
ing Respondent's strike statements. The Union said Re-
spondent spread rumor after rumor "about nurse aid
training schools replacing you." That statement was
false. However, as in the strike rumor situation discussed
in the preceding paragraph, the statement was made
against a background of concern created by Respond-
ent's letter to employees. In that letter Respondent
stated, inter alia:
3. Furthermore, the Masonic Home has the abso-
lute right to hire permanent replacements for any
employees who engage in an economic strike. The
results of such activity could be the loss of your
job. Have Local 250 salesmen told you about these
facts?
Thus, although the statement of the Union was false
about the rumor of replacements and the source thereof,
Respondent already had told employees there was a
danger of their striking and being replaced. Again, the
Union met one scare tactic with another and strayed
from the truth, but not to such a degree that the election
would be affected. The requirements of Hollywood Ce-
ramics were not met, so far as this objection is con-
cerned.
The Union's letter went still further and stated that
Respondent lined up employees, pointed at them, and ac-
cused them of being union supporters in order to scare
them.
This statement was untrue, as discussed above. There
is no background of Respondent's conduct against which
to assess this statement, since the Union raised the issue
44
MASONIC HOMES OF CALIFORNIA
for the first time. The alleged actions, if true, would con-
stitute a violation of Section 8(a)(l) of the Act. Two
questions therefore are presented: (1) Whether the state-
ment per se is objectionable election conduct; (2) whether
the conduct is objectionable under Hollywood Ceramics.
A statement that would be an 8(a)(l) violation of the
Act is not, for that reason alone, a valid objection to an
election. Many 8(a)(l) statements violate the Act only
because of the peculiar circumstances in which they are
made, or because of the technical nature of the violation.
A statement may be actionable, even though it is of a de
minimus nature, and such minor statements, standing
alone, rarely would provide a basis for upsetting an elec-
tion. Respondent cited in support of its argument, the
cases of Formco. Inc.,' and Gulton Industries. 14 Howev-
er, those cases are inapposite. In Formco, the statement
objected to "was that the employer was found guilty of
engaging in unfair labor practices." Such a finding had
not been made. The Board stated, inter alia:
This Board has been consistent in jealously
guarding against any intrusion or abuse of its proc-
esses for partisan election purposes. We have found
not only physical alteration of Board documents,
but also substantial mischaracterization or misuse of
such documents, to have the potential of placing the
Board's neutrality in question during the critical
preelection campaign period. A mischaracterization
of the legal effects of a settlement agreement similar
to that present herein existed in Dubie-Clark Co.,
Inc., supra. In that case a leaflet stating that "the
National Labor Relations Board has found that
Dubie-Clark has violated your rights under the
law" was distributed by the union 3 days prior to
an election when, in fact, an informal settlement
agreement containing a nonadmission clause had
been entered into by the parties. In setting the elec-
tion aside, we expressed concern both that the mis-
characterization might place the Board's neutrality
in question, and that allowing the misrepresentation
of settlement agreements for partisan election pur-
poses might discourage parties from voluntarily en-
tering into such settlements. We deem that case dis-
positive as to the objectionable nature of Petition-
er's statement. [Footnotes omitted.]
In Gulton, the Board reiterated the principles of Formco,
and extended them to a situation wherein a leaflet mis-
characterized a settlement agreement and thereby misled
employees into believing that the Board had found the
employer guilty of unfair labor practices, which it had
not.
Since the Board or its processes are not involved, ex-
plicitly or implicitly, in the statement here considered, it
is necessary to determine whether or not the statement is
objectionable under Hollywood Ceramics. It is found that
the statement, although not true, is mild, as campaign
rhetoric goes, and would have no effect on the election.
It was limited to "some departments"; it did not impugn
Respondent's integrity; it clearly was labeled as a scare
13 233 NLRB 61, 62 (1977)
14 Gulon Industries -Femco Division, 240 NLRB 546 (1979).
tactic. Respondent did not want the Union voted in, and
did not hesitate to communicate that desire to employ-
ees. Whether or not employees were "lined up" in some
departments would not alter the knowledge of employ-
ees that Respondent did not want them to vote for the
Union. This statement was not objectionable under the
principles of Hollywood Ceramics.
It is found that the statements in the Union's letter,
items 3 and 5, did not, in and of themselves, have any
impact on the election, and are not objectionable.
Izquierdo testified that, in September 1977, Jones came
uninvited to her home in the late afternoon, and:
THE WITNESS: Well, as he approached the screen
door, I latched it and told him I didn't want to dis-
cuss it. I had recognized who he was and didn't
want to discuss it so he said that he knew how I
was going to vote. I asked him if I did not have one
vote. He said yes. I said, well, I would exercise that
vote, but didn't want to discuss it any further.
Jones testified that he was not sure he visited Iz-
quierdo at her home, but that he "might have."
Izquierdo is credited, but Jones' conduct was not coer-
cive or menacing. Clearly, Izquierdo was not intimidated
by Jones or swayed in her voting intentions. She did not
testify that Jones frightened or threatened her. So far as
the record shows, Jones' visit was no more than a cam-
paign visit by a union representative.
Marlene Oliver credibly testified that, in August 1977,
she was confronted by six employees in a basement
tunnel at Respondent's facility:
THE WITNESS: We were going back to personal
care, and Wayne Keikas and Chuck Lopez jumped
out in front of us blocking our way, and they were
waving little cards in front of our face and they
asked us if we had signed up for the Union and that
we were the last ones to sign up. The nursing unit,
gardners and the kitchen had all signed, so we were
the last ones to sign, personal care.
THE WITNESS: And we said no, we weren't
going to. They said there could be trouble if we
didn't sign up for the Union. It could be our jobs or
there could be trouble made for us if we didn't sign
up. We told them to please move. We had to get
back on upstairs and after a few minutes, well, then
they did move and let us go by.
No other witnesses testified relative to this incident.
None of the elements required for setting aside an
election is present in this incident. The conversation oc-
curred approximately 5 months prior to the election; no
subsequent confrontation of a similar manner occurred.
Only 6 of the 183 voters were involved. There is no evi-
dence that any employee was intimidated by the incident
or fearful of not signing a card; there is no evidence that
any of the six employees later signed a card. There is no
evidence that either Respondent or the Union knew of,
45
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condoned, or instigated the incident.' This matter did
not create or contribute to an atmosphere of such fear
and violence that a free and fair election was improbable.
The incident is not, singly or in combination with any
other incident or incidents, basis for setting aside the
election. 1
Patricia Lovel, a nurse assistant, testified that in
August 1977 a fellow nurse assistant, Ester Paperick,
talked with her when approximately 15 unit employees
were present. Lovel said Paperick asked her to sign a
union card:
THE WITNESS: She told me to sign, that that was
the card for the Union and she asked me to sign the
card, if I was not to sign the card that I was going
to lose my job.
Lovel further testified that, a few months after Paperick
talked with her, another nurse assistant named Rosa
talked with her when five or six unit employees were
present:
THE WITNESS: She just asked me if I was signing
for the Union and I told Rosa no, I wasn't. I didn't
believe in the Union, 250 anyway.
By Mr. Silak:
Q. And what did she say to you?
A. And she say, "Well, if you don't, you know
you're not going to have a job." And I told her that
was a chance I would have to take.
Finally, Lovel testified that, 2 or 3 weeks after Rosa
talked with her, another nurse assistant named Koeling
or Koehler talked with her when two or three unit em-
ployees were present:
A. Well, she asked me the same thing, if I was
joining the Union.
Q. What did you respond?
A. I told her the same thing, that I did not be-
lieve in the Union.
Q. What did she say at that point?
A. Well, she told me the same thing the other
two, that if I didn't I wouldn't have a job.
Lovel was a doubtfully credible witness and her testi-
mony is not accepted as entirely accurate. However,
even assuming her credibility, the conversations, con-
cerning which she testified, reasonably cannot be found
to have created an atmosphere of fear and violence, nor
to have prevented a free choice by voters in the election.
Lovel previously had worked for a unionized employer,
and it is clear that she was not personally intimidated or
coerced by her fellow employees and their threats; to the
contrary, she continued to maintain her independence
even after the threats. There is no evidence that the ac-
I The Board and courts assign less weight to improper statements
made by employees than to similar statements made by a union or an em-
ployer. See, e.g., N.L.R.B. v. Claxton Manufacturing Company. Inc.. 613
F.2d 1364 (5th Cir. 1980); Fabricut,. Inc., 233 NLRB 1196 (1977).
6 V.L.R.B. v. Morgan Health Care Center. Inc.. 618 F.2d 127 (Ist Cir.
1980); Fidelity Telephone Company and its subsidiary Bourbeuse Telephone
Company v. N.L.R.B., 574 F.2d 409 (8th Cir. 1978); N.L.R.B. v. Spring
Road Corporation. d/b/a Community Convalescent East, 577 F.2d 586 (9th
Cir. 1978).
tions of the three union advocates were known to, con-
doned by, or instigated by either Respondent or the
Union. 7 It is found that these three incidents did not
taint the election and do not warrant setting aside the
election. 18
6. Counsel stipulated that, if called to testify, Arlene
Cruz, a unit employee, would testify as stated in her pre-
trial affidavit declaration, General Counsel's Exhibit 7(e).
That declaration recites that she received telephone calls
and a personal visit from union representatives that she
felt were harassing. The declaration has been carefully
reviewed and is found not to contain information ade-
quate to provide a basis for setting the election aside, for
the reasons set forth herein.
C. Alleged Misrepresentation of Law
Late in the campaign, the Union distributed to em-
ployees a leaflet reading as follows:
Management is lying to you about strikes-to scare
you. The Federal Law Section 8(d) of the National
Labor Relations Act of 1974 governs all rights
about strikes. Section 2(14) of Fed ACT governs
Health Care Institutions. The Law is so restrictive it
makes it almost impossible to have a strike any time a
health care facility exists. Your Administration is
playing on your fear don't fall for it. We have all
kinds of protections against having a strike!
Jones testified that the foregoing leaflet was the Union's
response to Respondent's letter to employees, which is
dated January 20, 1978.'9 Brown credibly testified, with-
out challenge, that he first saw the leaflet when it was
given to him by an employee late in the day on January
25, 1978. The election was held on January 27, 1978.
The union notice clearly is a misrepresentation of the
law. 20 Section 8(d) of the Act does not, and as a practi-
cal matter could not, govern "all rights about strikes."
Other statutory provisions, NLRB decisions, court deci-
sions, and court opinions must be consulted in order to
understand "all rights about strikes." The statement that
Section 2(14) of the Act "makes it almost impossible to
have a strike anytime a health care facility exists" patent-
ly misrepresents the law. That section merely extends the
provisions of the Act to health care institutions. The
only substantial limitation of the Act is a provision that
longer notice periods are required for strikes called at
health care facilities. 21 The Act does not affect the possi-
bility of having strikes; they are possible at health care
facilities to the same extent they are possible at the prem-
ises of all other employers subject to the Act. No provi-
sion, or provisions, of the law makes it "almost impossi-
ble" to strike a health care facility.
17 NA'L.R.B. v. Claxton Manufacturing Company. Inc.. supra: Fabricut.
Inc.. supra.
' .V.L.R.B. v. Morgan Health Care Center. Inc.. supra. Fidelity Tele-
phone Co. v. XL.R.B., supra: .VL.R.B. v. Spring Road Corp.. supra.
:9 U. Exh 1.
20 The statement "we have all kinds of protections against having a
strike!" is meaningless, and constitutes nothing more than campaign puf-
fery. It is given no weight.
21 29 U.S.C. §158(d).
46
MASONIC HOMES OF CALIFORNIA
Jones testified that the leaflet was distributed to all, or
virtually all, of Respondent's employees at Respondent's
premises.
Brown credibly testified relative to mail delivery times
to employees living in the area of Respondent's facility,
and, based on that testimony, it would not have been
possible for Respondent to have communicated with its
employees between the date the Union's leaflet was dis-
tributed and the date of the election. As a practical
matter, Respondent did not have adequate time in which
to prepare a response to the Union's misrepresentations.
Employees worked different days and different shifts,
and a substantial number of employees could not have
been reached by election time, either personally or by
mail. 22
By the time the Union's leaflet was distributed, em-
ployees were troubled by the matter of strikes and were
unsure of the possibility and effects of strikes. It may
well be, as discussed above, that Respondent first stirred
the matter up, but the Union did not clarify the subject
or do much to quell the uncertainty of employees. To
the contrary, the Union's letter to employees, Respond-
ent's Exhibit 2, tended to exacerbate the situation. Thus,
by the time employees received the Union's leaflet on
January 25, they were in serious need of accurate infor-
mation concerning strikes. Had a leaflet such as the one
quoted above been distributed by Respondent, an objec-
tion by the Union clearly would have been in order. The
fact that the Union, rather than Respondent, distributed
the false information does not alter the basis for objec-
tion. The Union apparently believed that Respondent
"got to" employees with their letter about strikes and, in
attempting to counter that effect, the Union tried to mis-
lead employees into believing that, regardless of what
Respondent said, they did not have to worry about
strikes because employees practically were prohibited by
law from striking at health care facilities. Therefore, em-
ployees went into the polling place with inaccurate and
misleading information concerning their rights under the
Act to strike. The Union's misstatements of the law,
given to employees shortly before the election and with-
out Respondent having adequate opportunity to rebut
those statements, constituted objectionable conduct and
necessitate a rerun election. 23
D. Alleged Misconduct in the Voting Area
Joyce Terwilliger, one of Respondent's certified nurs-
ing assistants, testified that she was one of Respondent's
observers at the election, together with one other Re-
spondent representative, Florence Passmore. Terwilliger
testified: there were two voting sessions, one in the
morning and one in the afternoon. She was present at all
times during both sessions. Throughout the morning ses-
sion two union observers, Robert Ashby and Ida Down-
ing, each placed small pieces of paper in front of them,
from time to time, on the table, and each made hash
22 Brown credibly testified that approximately 30 percent of Respond-
ent's employees would be off work on any given day, including January
25, 26, and 27, 1978.
23 LOF Glass. Inc., 249 NLRB 428 (1980); Robbins & Myers. Inc.. 241
NLRB 102 (1979); Graphic .4rts Finishing Company '.. .L.R.B.. 380 F.2d
893 (4th Cir. 1967).
marks on the papers, at approximately the same times
when certain voters from the dietary and other depart-
ments came in to vote. Downing did not continue that
activity during the afternoon session, but Ashby did, for
a short period of time. A representative of NLRB was
present during all the voting, but she did not talk with
him about the conduct of Ashby and Downing. During
the afternoon the Board agent asked Ashby what he had,
and Ashby showed the agent the paper he had. The
agent "admonished" Ashby and said, "... he wasn't
supposed to do that."
Yvonne Witt, one of Respondent's personal care atten-
dants, testified that she voted in the election in the after-
noon. She said there were two gentlemen seated at the
table when she came, and one was named Bob. She con-
tinued:
He was writing something on a piece of paper, so I
asked what he was doing, and the Oriental gentle-
man asked him what he was doing, and he said he
was writing down some names, so he told him to
put the piece of paper away. 2 4
Witt said some nurses from the skilled nur.ing depart-
ment were in the voting area at the time. Witt testified
that the Oriental gentleman talked with Bob after she
asked Bob what he was doing.
Jones testified that he was present at the counting of
the ballots and that he kept a tally sheet25 by making
hash marks to count the ballots. Names written on the
back of the sheet are challenged voters, placed there, he
believes, by Downing.
Discussion
Neither Ashby nor Downing testified. The paper,
Union's Exhibit 7, was not shown to be the same piece
of paper either Ashby or Downing had during the
voting, hence it is considered irrelevant. Jones was not
even sure where he got the paper, but said he believed
he got it from Downing. The fact that Jones placed hash
marks on the paper is immaterial. The question is what,
if anything, happened during the voting.
In the absence of any other testimony or evidence
concerning the incident, the question of whether or not
Ashby and Downing made marks and wrote on paper
during the voting as voters came to cast ballots, only can
be resolved on the basis of testimony given by Terwil-
liger and Witt. Those two witnesses gave detailed and
convincing testimony, and they are credited. It is found
that Ashby and Downing, the Union's observers at the
election, periodically made marks or wrote on small slips
of paper that they placed, from time to time, on the
voting table in view of voters, as voters came into the
room. It is further found that, after Witt asked what was
happening, an NLRB representative questioned Ashby,
was told that names were being written down, and told
Ashby to discontinue the activity.2 6
2' The "Oriental gentleman" was Board Agent Leland Leong
2' U. Exh. 7
26 It is clear. and found. that he paper Ashh and Dov, ning wrote on
%Was not the official voting list That list is not in.olsed in the controer-
sy.
47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board and courts long have held that voting in
Board cases must be free of any impropriety, and that
employees must be permitted to cast their ballots in
secret, in complete freedom, and without fear of reprisal
or discipline. Activity that reasonably can be construed
as improper is proscribed whether or not the activity is,
in fact, improper. Impropriety has taken many forms in
the cases, and one such is the keeping of lists of voters.
Such lists are improper if employee voters know, or rea-
sonably can infer, that their names are being recorded.2z
It is possible, of course, for list-keeping to be de mini-
mus,2 8 but that argument is without merit in the case
herein, since the list-keeping followed substantial misrep-
resentations of law by the Union, and further, a Board
representative "admonished" Ashby for his activity. Fi-
nally, the list-keeping was continuous throughout the
morning voting, and during the afternoon voting until
Witt questioned the practice.
The fact that Witt knew of the record being made by
Ashby and Downing, and that several other employees
27 Piggly-Wiggly #011 and #228 Eagle Food Centers. Inc.. 168 NLRB
792 (1967); A. D. Juilliard and Co., 110 NLRB 2197 (1954). In the instant
case, it appears that Ashby's list may have been comprised, at least par-
tially, of marks rather than names. That fact is immaterial. The effect of
making marks within sight of voters would be the same as writing names.
28 See, e.g., Robert's Tours, Inc. v. N.L.R.B., 578 F.2d 244 (9th Cir.
1978).
were present when she was voting, credibly was estab-
lished by Witt. It is reasonable to infer, and it is inferred,
that the other employees in the room observed the list-
keeping, as did Witt. Based on Terwilliger's testimony, it
is inferred that other employees saw the list-keeping
during their voting, as did Terwilliger.
Based on the foregoing, it is clear that the Union's rep-
resentatives at the election engaged in improper conduct,
i.e., keeping lists of voters, in violation of established
Board law, and that a rerun of the election is necessary
to insure a fair election.29
Based on the record, and on the findings and conclu-
sions herein, it is recommended that Respondent's objec-
tions embodied in the discussion set forth in sections A
and B, above, be dismissed as without merit.
Finally, it is recommended that the election conducted
on January 27, 1978, in Case 32-RC-154 be set aside,
and that said case be remanded to the Regional Director
for Region 32 to conduct a new election at such time as
he believes the circumstances permit the free choice of a
bargaining representative.
29 Seabrook Farms, Inc., 32-RC-379 (1979): Marathon Le Tourneau
Company, Gulf Marine Division of Marathon Manufacturing Company, 208
NLRB 213 (1974): Belk's Department Store of Savannah. Ga.. Inc. 98
NLRB 280 (1952).
48