Moody Nursing Home, Inc., 147 (1980)

Docket Number:10-CA-14187


Moody Nursing Home, Inc. and Laborers' International Union of North America, AFL-CIO,

Local 1348. Cases 10-CA-14187, 10-CA14215, 10-CA-14853, and 10-RC-11609

August 13, 1980



On May 6, 1980, Administrative Law Judge Robert Cohn issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order.

  1. We agree with the Administrative Law Judge that, during the critical preelection period, Respondent's agents twice violated Section 8(a)(l) of the Act by soliciting employee grievances and at least impliedly promising that corrective action would be taken, thereby interfering with the employees' right to a fair and free election.2

    Although the Petitioner did not specifically raise the issue of unlawful solicitation of grievances in timely filed written objections, the Board has a 'longstanding policy which permits a Regional Director to set aside an election based on conduct which he has discovered during his investigation, even though that particular conduct [was not] the subject of a specific objection.'3

    1. The Administrative Law Judge also considered the Petitioner's timely filed written objections to conduct affecting the results of the election. The Administrative Law Judge recommended that certain of the Petitioner's objections be overruled 4 i Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Don 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 resersing his findings 2 Dal-Tex Optical Company. Inc., 137 NLRB 1782 11962).

      American Safety Equipment Corporation, 234 NLRB 50()1(19781

      4 In the absence of exceptions thereto, we adopt proofrma. the Administrative Law Judge's recommendations that the Petitioner's Objectiols A. E, G. H, . J, and K be overruled 251 NLRB No. 22 and that the election also be set aside based upon his findings concerning the following objections:

      B. The Employer agents told employees that they had to pick up checks before they could vote;

      C. The Employer attached to the outside of each employee check a miss statement [sic] of anti-Union propoganda, [sic] and the Union did not have a chance to reply;

      D. The employee was told by the Employer's agent to now go across the room and vote;

      F. An employee who arrived early to work was not allowed to vote until after she received her check and was told she could only vote at 3:00 p.m.

      The election was held on January 24. 1979, a payday. Respondent did not follow its normal practice of distributing paychecks at the end of each shift. Shortly before the polls opened, and throughout the course of the election, announcements were made over the loudspeaker instructing those employees scheduled to vote to pick up their paychecks and then to go vote. There was testimony that employees would not be allowed to vote without first picking up their paychecks.5

      Attached to each employee's paycheck was a slip of paper which read as follows:

      If you had been paying union dues to the Laborer's Union for only the last three months that the Union has been trying to get in here, you would already have paid at least $19.50* in dues alone (not to mention possible fines, assessments, and initiationfees).

      This money would have gone to help pay the salary and expense accounts of some union 'big shot' here or in Washington. This is your money. You earned it-WHY not keep it for you and your family,

      V O T E 'N O' *Actually, the Union Constitution stales that you would pas more Inasmuch as the International union constitution provides that monthly dues of a local union shall not be less than $7 per month the Administrative 'In this regard. the record reveals that cmnplioee, ho had not cl picked up iheir pa>check, ere made to get lut of lie ;itid IiolI thal the5 would hae I do so before being allossed Ito sol Ellen Moitorlara, Respondenl' staff dcs elopnle it c rdilltor.rte ificd that the Illfilrlg hotm5; attorilles inlructled her Io dirct cnlOh ecs firmi Io pick up their paychecks it]d then to sote MOODYNURSINGHOME.INC. 147

      Law Judge properly found that the pay slip was not misleading.6

      Based upon the foregoing facts, the Administrative Law Judge found that Respondent had engaged in objectionable conduct. He concluded that the language on the pay slips, 'taken together with the timing of the conduct, was likely to create a 'massed psychology' to which the Union clearly had no opportunity to respond.' In support of his finding, the Administrative Law Judge relied on Peerless Plywood Company.7

      In Peerless, the Board decided that campaign speeches to massed assemblies of employees, on company time, within 24 hours of the start of an election, should be prohibited because of a propensity 'to create a mass psychology which overrides the arguments made through other campaign media,' thus affording an unfair advantage to whichever party obtains the last word. The Administrative Law Judge concluded that Respondent's conduct, under the circumstances, was likely to create a similar mass psychology during the final minutes before voting and, therefore, that it violated the Peerless Plywood rule.

      We disagree with this conclusion.

      As expressly set forth in Peerless, the rule does not interfere with the right of any party to circulate campaign literature, on or off the premises, or to otherwise take advantage of lawful means of persuasion during the critical 24-hour period. The Board held in The Mosler Safe Company,8 where written propaganda concerning union dues was distributed along with paychecks on election day, 'that neither the use of the pay envelopes for the stated propaganda purpose nor the acceleration of the pay hour constituted an interference with the employees' freedom of choice, which would warrant setting aside the election.' In The Trane Company (Clarksville Manufacturing Division),9 the Board stated, citing Peerless, that '[t]here is no rule against the distribution of written propaganda material to employees during the 24 hours preceding the election, as there is against the making of speeches on company time to massed assemblies of employees during this period.' It is only the content of the written material, and not the medium or timing involved, which is relevant to our inquiry into the material's effect on an election. Thus, having found that the paycheck notice in the instant case accurately represented the Union's dues 'We note that Shopping Krt Food Murket. Inc., 228 NLR3 1311

      1977), cited by the Administrative Law Judge along with the statement that the Board swould 'no longer probe into the truth or falsity of the parties' campaign statements,' has been overruled by General Knit of (aIoroniu, Inc,.239 NlRB 619 (1978) 107 NLRB 427. 429 1953) 129 Nl.R 747. 749 (1960). citing with approval ,Uontrov Hnger Co., 120 NI.R 8 (1958X ' 137 NlRB 1506, 1509 1962) requirement, the Administrative Law Judge erred in finding Respondent's conduct objectionable based upon factors unrelated to the propaganda's content. Accordingly, we overrule the Petitioner's Objection C.' 0

      We find, however, that the conduct described in the Petitioner's Objection B constitutes an independent ground for setting aside the election.

      While it is true that an employer may accelerate the distribution of paychecks accompanied by nonmisleading propaganda to coincide with the start of an election,t it does not follow that an employer may condition the right to vote upon an employee first securing his paycheck. In this case, employees were instructed to pick up their paychecks and then to go vote. Employees who had lined up to vote and had not yet secured their paychecks were told they would not be permitted to vote until they had picked up their checks. Where, as here, an employee's right to vote is expressly made to appear contingent upon picking up a paycheck, the interference with the employee's expression of free choice is clear. The employees are given to understand that, rather than having an absolute Section 7 right to cast their votes for or against union representation, their franchise depends upon the sufferance of the employer. Accordingly, we sustain the Petitioner's Objection B.


      Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Moody Nursing Home, Inc., Decatur, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

      IT IS FURTHER ORDERED that the election conducted on January 24, 1979, among the Employer's employees be, and it hereby is, set aside, and that Case 10-RC-11609 be, and it hereby is, severed and remanded to the Regional Director for Region 10, for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative.

      [Direction of Second Election omitted from publication.] 12

      MEMBER PENELLO, concurring in part and dissenting in part:

      ''The Petitioner's Objections D and F are also...

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