Arbors at New Castle, (2006)

Extendicare Health Services, Inc. d/b/a Arbors at New Castle and United Food and Commercial Workers International Union, Local 27, Professional Health Care Division. Case 4–RC–21062

June 30, 2006

DECISION AND DIRECTION

By Chairman Battista and Members Liebman and Kirsanow

The National Labor Relations Board, by a three-member panel, has considered both an objection and determinative challenges in an election held September 22, 2005, 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 22 votes for and 19 against the Petitioner, with 3 determinative challenged ballots.

The Board has reviewed the record in light of the exceptions and briefs, and has adopted the hearing officer’s findings and recommendations only to the extent consistent with this Decision.

The Employer operates a long-term nursing care facility in New Castle, Delaware. The Board election was conducted in a unit of nonlicensed service and maintenance employees, most, but not all, of whom are certified nursing assistants (CNAs). As stated above, the Petitioner received a majority of the votes, by a tally of 22 to 19.

There were three determinative challenged ballots. One of them, the ballot of employee Teresa Waldridge, was resolved by stipulation prior to the hearing in favor of Waldridge’s eligibility to vote. The hearing officer sustained the second ballot challenge, concluding that employee Ayub Ndgiri was ineligible to vote because the parties had agreed to exclude his job classification from the voting unit. The hearing officer chose not to resolve the third challenged ballot, that of Lorraine Gibson, whom the Petitioner asserted was a statutory supervisor.

In addition, the Employer filed an objection alleging that the Board agent’s late opening of the election polls resulted in the possible disenfranchisement of five eligible employees who did not vote. The hearing officer found merit in this objection, and because the ballots of these five employees would have been determinative if they had voted, he recommended that a new election be conducted.

We disagree with the hearing officer’s disposition of the objection and the challenged ballots of Ndgiri and Gibson. Accordingly, we will reverse his findings on all three matters, and remand this proceeding to the Regional Director to open and count the three determinative challenged ballots in the election.

i. the objection: late opening of the polls

As we will explain, the hearing officer here failed to appreciate the significance of the parties’ factual stipulation regarding the late opening of the polls, as well as additional evidence consistent with it, considered in light of our precedent.

  1. Factual and Procedural Background

    The parties agreed to the following stipulation just prior to the hearing:

    1. The polls for the representation election in the above-captioned case were scheduled to be open from 6:00 AM to 7:30 AM and from 2:00 PM to 3:30 PM on Thursday, September 22, 2005. [The] Board Agent ... arrived at the polling site at 6:05 AM and opened the polls at 6:16 AM

    2. The following five employees appearing on the Excelsior list did not appear at the polls at any time during the scheduled polling hours and did not vote in the election: Sheila Clark, Olivia Connor, Taiya Johnson, LaTyra Jones and Stella Rogers.

    The five named employees did not testify at the hearing. Based on documentary evidence and the testimony of Leigh Weber, the chief administrator of the Employer’s facility, the hearing officer found that on the day of the election, employee Clark clocked in at 6:42 a.m.; employee Connor called in sick and did not work; employee Jones was not scheduled to, and did not, work; employee Johnson clocked in at 9:18 a.m.; and employee Rogers had been on long-term sick leave for 2 years.[1]

    The hearing officer found that, in an election decided by three votes, the additional ballots of the five nonvoting employees would have been determinative. He further found that it had not been proved that any of the five could not possibly have been prevented from voting by the delayed opening of the polls. Thus, in the hearing officer’s view, the evidence did not affirmatively establish the whereabouts of the five employees during the critical 16 minutes, and accordingly, each could have gone to the polling site during that time and been prevented from voting because the polls were closed. Citing Pea Ridge Iron Ore Co., 335 NLRB 161 (2001), he sustained the objection and recommended a new election.

  2. Analysis

    In Pea Ridge Iron Ore Co., supra, the Board held in relevant part that

    [w]hen election polls are not opened at their scheduled times, the proper standard for determining whether a new election should be held is whether the number of employees possibly disenfranchised thereby is sufficient to affect the election outcome, not whether those voters, or any voters at all, were actually disenfranchised.

    335 NLRB at 161 (emphasis added). The Board explained that the standard is objective and takes no account of subjective, after-the-fact statements regarding why an eligible employee did not vote. Id.

    The parties’ stipulation here establishes affirmatively that the five nonvoting employees “did not appear at the polls at any time during the scheduled polling hours.” This necessarily includes the 16 minutes when the polls were scheduled to be open but were not. In other words, the parties agreed that none of these employees arrived unnoticed during the relevant period, found the polls closed, and departed unable to vote.[2]

    The hearing officer’s findings concerning the whereabouts of each of the five employees are consistent with the stipulation. Thus, Clark and Johnson clocked in for work after the 16-minute delay occurred, and Connor, Jones, and Rogers did not work at all on September 22. Objectively, then, this evidence, in combination with the parties’ stipulation, establishes that the five employees could not possibly have been disenfranchised by the delayed opening of the poll, consistent with the Pea Ridge standard.

    In its brief opposing the Petitioner’s exceptions, the Employer contends that the stipulation is ambiguous, and that the parties never intended to stipulate that the five employees did not appear at the polls during the 16-minute period. However, the Employer’s references to the “parties’ intentions” are not based on any record evidence. More significantly, the Employer’s explanation does not account for the fact that the stipulation’s language—that the employees “did not appear at the polls at any time during the scheduled polling hours” (emphasis added)—unequivocally includes the 16 minutes when polling was scheduled, but delayed.

    “[I]t is generally accepted that a stipulation is conclusive on the party making it and prohibits any further dispute of the stipulated fact by that party or use of any evidence to disprove or contradict it.” Kroger Co., 211 NLRB 363, 364 (1974) (footnote citation omitted).[3] The Board’s strict standard is due, at least in part, to the parties’ choice to forgo offering evidence at the hearing in favor of reliance on the stipulation. Id. at 364. Here, neither party called any of the five employees at issue to testify concerning his or her whereabouts between 6 and 6:16 a.m. on September 22.

    Accordingly, in light of the parties’ stipulation,[4] as well as the additional evidence consistent with it, we overrule the Employer’s objection.

    ii. the challenged ballots: eligibility of gibson and ndgiri

    In their Stipulated Election Agreement, the parties agreed to a unit of

    all full-time and regular part-time non-licensed service and maintenance employees, including Certified Nursing Assistants (CNA), activities employees and maintenance employees employed by the Employer at its New Castle, Delaware (Arbors at New Castle) facility, excluding all other employees, including office clerical employees, confidential employees, contracted employees (dietary and housekeeping), Registered Nurses (RN), Licensed Practical Nurses (LPN), guards and supervisors as defined in the Act.

    For the reasons that follow, we find that employees Gibson and Ndgiri should be included in the unit and their ballots counted.

  3. Employee Gibson

    The Board agent challenged Gibson’s ballot because her name was not on the eligibility list. At the hearing, the Petitioner contended that Gibson, classified as a “supply clerk,” was an ineligible statutory supervisor in light of her authority to schedule employees for work. The hearing...

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