NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,570, THE HOSPITAL OF THE GOOD SAMARITAN and AMERICAN FEDERATION OF NURSES, LOCAL 535, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, CLC., (Dec. 16, 1994), National Labor Relations Board, (Dec 16, 1994)

THE HOSPITAL OF THE GOOD SAMARITAN and AMERICAN FEDERATION OF NURSES, LOCAL 535, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, CLC.

315 NLRB No. 116.Case Nos. 31-CA-19912, -19961 and 31-RC-7050. December 16, 1994 Gerald A. Wacknov, Administrative Law Judge..

Before Gould, Browning and Cohen.

Ann Reid Cronin, for General Counsel. Robert M. Stone and Douglas R. Hart (Musick, Peeler & Garrett), Los Angeles, California, for Respondent. James Rutkowski (Van Bourg, Weinberg, Roger & Rosenfeld), Los Angeles, California, for Union.

Election Objections--Employer Interference--Objectionable Preelection Conduct.--Because an employer engaged in objectionable preelection conduct that destroyed the laboratory conditions necessary for a free and fair election, the NLRB to order a rerun representation election. The employer’s unlawful conduct immediately prior to the election included threatening termination for meeting with other employees during their breaks, discontinuing an existing unit-based education program and blaming it on the union, engaging in surveillance of union activities and threatening reprimands if the employees brought union literature onto the employer’s property. Section 9(c).

Back reference: ¶2791.43.

From Text of Board’s Decision

The issues in this proceeding are whether the judge correctly found that the Respondent: violated Section 8(a)(1) of the Act on several occasions; violated Section 8(a)(3) of the Act by eliminating a desirable unit-based educator program because of the Union; and engaged in objectionable preelection conduct which interfered with the results of the election. [1] The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [2] and conclusions, [3] to adopt the recommended Order as modified, [4] to set aside the results of the election affected by the Respondent’s conduct, and to direct a second election.

¹	On April 27, 1994, Administrative Law Judge Gerald A. Wacknov issued the attached decision. The Respondent and the Union filed exceptions and supporting briefs. The Respondent filed an answering brief to the Union’s exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
²	The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resulutions unless the clear preponderance of all the relevant evidence convinces us that they are incorect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. [¶19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.
³	There are no exceptions to the judge’s recommended dismissal of several complaint allegations of 8(a)(1) violations. The Petitioner has excepted to the judge’s failure to sustain objections to the Respondent’s campaign propaganda and to the use of Relief House Supervisor Ronald Masson as an election observer. We find no need to pass on these objections in light of our adoption of the judge’s conclusion that the election should be set aside based on the unfair labor practices committed by the Respondent during the critical preelection period.
⁴	We will modify par. 1(b) of the judge’s recommended Order to additionally reflect his finding that the Respondent violated Sec. 8(a)(1) by telling employees that the unit-based educator program was being discontinued because of the Union. The Respondent asserts in exceptions that changed circumstances in its operations make inappropriate the judge’s recommended affirmative remedy requiring restoration of the unit-based educator program. In support of this argument, the Respondent offers the affidavit of one of its officials. We reject the affidavit, which is not a part of the record in these proceedings. We shall, however, modify the recommended Order to provide explicitly that reestablishment of the unit-based educator program will be required unless the Respondent establishes in the compliance stage of this proceeding, based on evidence unavailable at the time of the unfair labor practice hearing, that this remedy is inappropriate. We Can, Inc., [1993-94 CCH NLRB ¶15,509] 315 NLRB No. 24 at slip op. 5-8 (Sept. 30, 1994).

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,570, THE HOSPITAL OF THE GOOD SAMARITAN and AMERICAN FEDERATION OF NURSES, LOCAL 535, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, CLC., (Dec. 16, 1994), National Labor Relations Board, (Dec 16, 1994)

THE HOSPITAL OF THE GOOD SAMARITAN and AMERICAN FEDERATION OF NURSES, LOCAL 535, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, CLC.

315 NLRB No. 116.Case Nos. 31-CA-19912, -19961 and 31-RC-7050. December 16, 1994 Gerald A. Wacknov, Administrative Law Judge..

Before Gould, Browning and Cohen.

Back reference: ¶2791.43.

From Text of Board’s Decision

¹	On April 27, 1994, Administrative Law Judge Gerald A. Wacknov issued the attached decision. The Respondent and the Union filed exceptions and supporting briefs. The Respondent filed an answering brief to the Union’s exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
²	The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resulutions unless the clear preponderance of all the relevant evidence convinces us that they are incorect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. [¶19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.
³	There are no exceptions to the judge’s recommended dismissal of several complaint allegations of 8(a)(1) violations. The Petitioner has excepted to the judge’s failure to sustain objections to the Respondent’s campaign propaganda and to the use of Relief House Supervisor Ronald Masson as an election observer. We find no need to pass on these objections in light of our adoption of the judge’s conclusion that the election should be set aside based on the unfair labor practices committed by the Respondent during the critical preelection period.
⁴	We will modify par. 1(b) of the judge’s recommended Order to additionally reflect his finding that the Respondent violated Sec. 8(a)(1) by telling employees that the unit-based educator program was being discontinued because of the Union. The Respondent asserts in exceptions that changed circumstances in its operations make inappropriate the judge’s recommended affirmative remedy requiring restoration of the unit-based educator program. In support of this argument, the Respondent offers the affidavit of one of its officials. We reject the affidavit, which is not a part of the record in these proceedings. We shall, however, modify the recommended Order to provide explicitly that reestablishment of the unit-based educator program will be required unless the Respondent establishes in the compliance stage of this proceeding, based on evidence unavailable at the time of the unfair labor practice hearing, that this remedy is inappropriate. We Can, Inc., [1993-94 CCH NLRB ¶15,509] 315 NLRB No. 24 at slip op. 5-8 (Sept. 30, 1994).

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,570, THE HOSPITAL OF THE GOOD SAMARITAN and AMERICAN FEDERATION OF NURSES, LOCAL 535, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, CLC., (Dec. 16, 1994), National Labor Relations Board, (Dec 16, 1994)

From Text of Board’s Decision

Footnotes

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,570, THE HOSPITAL OF THE GOOD SAMARITAN and AMERICAN FEDERATION OF NURSES, LOCAL 535, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, CLC., (Dec. 16, 1994), National Labor Relations Board, (Dec 16, 1994)

From Text of Board’s Decision

Footnotes