Lancaster Care Center, L.L.C., 671 (2002)

Lancaster Care Center, L.L.C. and Sheet Metal Workers International Association, Local Union #565, AFL-CIO. Case 30-RC-6193

November 22, 2002

DECISION AND DIRECTION OF FOURTH

ELECTION

BY MEMBERS LIEBMAN, COWEN, AND BARTLETT

The National Labor Relations Board has considered objections to an election held April 26, 2001, and the hearing officer's report recommending disposition of them.

The election was conducted pursuant to an Order Setting Aside Election and Direction of Third Election. The tally of ballots shows 20 for and 21 against the Petitioner, with 2 challenged ballots, which were sufficient in number to affect the results of the election.1

The Board has reviewed the record in light of the exceptions and briefs,2 has adopted the hearing officer's findings3 and recommendations, as modified below, and finds that the election must be set aside and a new election held.

The Employer has excepted to the hearing officer's recommendations to sustain the Petitioner's Objections C, D, G, H, and I. We agree with the hearing officer's recommendation to sustain Objection D and find that it warrants setting aside the election.4 Thus, the credited testimony of Cindy Klinkhammer was that she overheard LPN Kris Mumm, a supervisor,5 tell another CNA that if the Union were successful in organizing the certified nursing assistants (CNA's) the LPNs would no longer help the CNAs. The credited testimony also shows that this statement was disseminated by Klinkhammer to

1 In the Board's earlier Order and Direction of Hearing on the objections, the Board adopted, pro forma, the Regional Director's recommendations that the challenge to employee Mezera's ballot be sustained and that employee Meyer's ballot remain unopened because it was no longer determinative.

2 In the absence of exceptions, we adopt, pro forma, the hearing officer's recommendation to overrule the Petitioner's Objections A, B, and

J. 3 The Employer has excepted to some of the hearing 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 find no basis for reversing the findings.

4 Because Objection D warrants setting aside the election, we find no need to pass on the other objections sustained by the hearing officer. While she agrees that Objection D provides sufficient grounds to set aside the election, Member Liebman would also agree with the hearing officer that the surveillance incidents in Objections G and H constituted objectionable conduct.

5 During the hearing, the parties stipulated that Mumm was a statutory supervisor within the meaning of the Act.

other unit members. Finally, it is significant that the threat of reprisal was made within 2 months of the election and that it could have affected the election, which was decided by one vote. It is well established that a threat of reprisal reasonably tends to interfere with the employees' free and uncoerced choice in an election. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969); Hopkins Nursing Care Center, 309 NLRB 958 (1992); and Copps Food Center, 296 NLRB 395 (1989). Therefore, the Employer's exceptions as to this objection are without merit.

In dissent, Member Cowen argues that Mumm's statement6 was "an almost certainly truthful statement concerning what the Union would do at Lancaster to protect the work jurisdiction of the CNAs": to advance the interests of CNAs, the Union would prevent LPNs from helping CNAs. Thus, in his view, the statement was neither a threat of reprisal (because it did not implicate action by the employer), nor a prediction of adverse consequences if the Union prevailed in the election (because protecting work jurisdiction would be advantageous, not harmful, to the CNAs). The Employer, however, who would reasonably best construe its own witness's testimony, does not even advance this interpretation of what was said.

In any case, the flaw in the dissent's view is that Mumm did not say anything resembling what Member Cowen says. Whether or not her statement may have been prompted by her knowledge of events at another facility where the CNAs had organized, Mumm did not link her prediction, as Member Cowen does, to the anticipated efforts of the CNAs' union. Nor did Mumm suggest, in any way, that the CNAs might prefer not to have the LPNs help. Regardless of our colleague's interpretation of what she may have intended to say, we must evaluate Mumm's actual statement, as it is the sole evidence on this record of her intended meaning.

Here, the most straightforward interpretation of what Mumm did say is that she threatened the CNAs with reprisal or predicted adverse consequences from unionization. This interpretation is bolstered by Mumm's testimony that she told employees that the change was based on "Orchard Manor policy," with no reference to either negotiations or union preference at that facility. Contrary to our dissenting colleague's reasoning, the stan-6 Member Cowen bases his view on the evidence that Supervisor Mumm said, "[I]f the Union were successful, the LPNs would no longer help the CNAs." This is the phrasing used by employee Klink-hammer. Mumm testified that she told employees, "[A]ccording to the Orchard Manor policy, since they have had the union, the LPNs are not required to go out on the floor to assist the aides as they have before they were unionized."

dard for evaluating what Mumm did say is not whether it could, given sufficient additional information, be interpreted benignly by a reasonable employee. Rather, the "test, an objective one, is whether the conduct of a party to an election has the tendency to interfere with the employees' freedom of choice." Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995).

Our colleague claims that he agrees with us as to the appropriate test, but that our point of departure is our different visions of a "reasonable employee." Thus, he says:

Implicit in my evaluation of Mumm's remark is the view that a reasonable employee in the midst of a union organizing campaign is open-minded and seeks to be accurately informed about matters germane to her impending election choice, including work jurisdiction protection . . . . By contrast, the "reasonable employee" posited by the majority strikes me as reflexively suspicious of her employer and therefore prone to jump to conclusions instead of finding out why Orchard Manor's LPNs no longer help its CNAs, and why the same thing would likely happen at Lancaster if its CNAs voted or the union . . . .

The dissent errs in two respects: First, the standard for judging whether statements "imparted somewhat cryptically" (the dissent's words) are objectionable does not entail an obligation on the part of the "reasonable employee" to inquire into "the facts of life in a unionized workplace" in order to divine a legitimate gloss to what was said. The test is not what the speaker may have meant to say, but did not. Rather it is whether the actual words spoken would tend to interfere with employee free choice. The Court has declared that this resort to "brinkmanship" is to be shunned. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).

Second, in Gissel, 395 U.S. at 618, the Supreme Court provided the vision of the "reasonable employee" that guides our analysis. It is necessary, the Court said, when analyzing employer statements that could be interpreted as threats, to "take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." Id. at 620.

Thus, a reasonable employee, hearing Mumm's statement and knowing that the LPNs were subject to the Employer's direction, could infer that the LPNs' refusal to help the CNAs would be attributable to the Employer's direction or at least its acquiescence. The statement is therefore appropriately viewed as a threat of

adverse consequences should the employees choose to unionize. The possibility that some employees might have interpreted the statement as Member Cowen has, and the purely speculative possibility that the Union would have offered other employees the same benign explanation of Mumm's statement that our colleague advances if an employee had approached the Union for clarification, in no way diminishes the likely effect of the statement.

In short, there is no way to reconcile our dissenting colleague's position with the Board's well-established standard for assessing objectionable conduct. Because a statement need only have a reasonable tendency to interfere with employees' freedom of choice,7 the possibility of a benign interpretation-even a possibility less remote than the one offered by the dissent-is immaterial.

[Direction of Fourth Election omitted from publication.]

MEMBER COWEN, dissenting.

The hearing officer recommended sustaining Objections C, D, G, H, and I. My colleagues sustain Objection D, find it unnecessary to pass on the others, set aside the results of the third election, and direct a fourth election. I would overrule all of the Petitioner's...