Petition — Neuro Affiliates v. National Labor Relations Board

JAN 24 1084

83-1253 ~Pse

No. ..-...

IN TH

Supreme Court of the United States

October Term, 1983

NEURO AFFILIATES d/b/a CROSSROADS HOSPITAL,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit.

STANLEY E. Tosin,

JAMES A. BOWLES,

HILL, FARRER & BURRILL,

34th Floor, Union Bank Square,

445 South Figueroa Street,

Los Angeles, Calif. 90071,

(213) 620-0460,

Attorneys for Petitioner,

Neuro Affiliates d/b/a

Crossroads Hospital.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

Questions Presented. '

A. Whether the NLRB and Court of Appeals erro-

neously refused to set aside an NLRB conducted represen-

tation election where the Union engaged in material mis-_

representations, attempted entrapment of the Employer, mass

discriminatory challenges and other irregularities which

destroyed the laboratory conditions necessary to insure a

fair and free election.

B. Whether the Court of Appeals improperly utilized

an ‘‘abuse of discretion’’ standard of review of factual de-

terminations made by the NLRB, where the ‘‘substantial

evidence’’ test is the proper standard.

C. Whether the NLRB and Court of Appeals erro-

neously upheld factual determinations made by the NLRB

Regional Director, where the evidence relied upon by the

Regional Director was not part of the record before the

NLRB and _ the Court of Appeais.

D. Whether the NLRB and Court of Appeals erro-

neously denied Crossroads’ right to a hearing on the above-

Stated issues, where Crossroads presented evidence which

made a prima facie showing of facts sufficient to set aside

the election.

'The fi parties have an interest in the outcome of this case

date png ie mae ag rt a ma

Cross : is** or i) ). Con prehensive Corporation is

one of the in int venture partnership forming Neuro Af-

filiates Hospital Affiliates Corporation is the other partner in the

joint pd yarn = see. ‘

ees International Union, (herein *‘Union’’), was the charging

Pt

—-

TABLE OF CONTENTS

Page

I Whi sccnchs ceoneschascingnccenséensnsennsun i

Citations to Opinions Below ..................seseseeeeeee l

te te cui, ccinincwabacecoassqhtostenesheanse 2

ect hadcensvatiesapesndsessesctonbsuacsed 2

III so sindnotttdcncrnncsnscicossoosancesios 2

Reasons for Granting the Writ ...................s.sesee00 7

I

The Court of Appeals’ Refusal to Find the Attempted

Entrapment of the Employer by the Union and Its

Use of Mass, Discriminatory Challenges Against

Pro-Company Voters to Be Objectionable Conduct

Conflicts With Applicable Decisions of Other Cir-

cuits and Condones Unfair Election Practices .... 7

I.

The Court of Appeals’ Use of an ‘‘Abuse of Discre-

tion’’ Standard to Review Factual Determinations

Made by the NLRB Conflicts With Applicable De-

cisions of Other Circuits Which Require That the

Board’s Factual Findings Be Supported by Sub-

stantial Evidence on the Record as a Whole ...... 10

Il.

The Failure of the NLRB and the Court of Appeals

to Review All Evidence Relied Upon by the NLRB

Regional Director in Making His Factual Deter-

minations Violates Due Process and the Established

Rule in Four Other Circuits ....................cc000s 12

ill

Page

IV.

The NLRB and Circuit Court Denied Petitioner a

Hearing on Substantial and Material Factual Issues,

Despite Crossroads’ Presentation of Evidence

Strongly Proving That the Union Used Mass, Dis-

criminatory Challenges to Intimidate Pro-Company

IID acct we ci ncceceucconsbscossenepdcescscnnsapeereneass 16

A RN ROPER I cfg eB 8 Pe 21

INDEX TO APPENDICES

Appendix A. Report on Objections of the Regional

Director National Labor Relations Board, Region 31,

COS PETE Seccdcccpsbdidessdaicsectsenns App. p. 1

Appendix B. Decision and Certification of Represen-

tative of the National Labor Relations Board, Case

SOD * cadena sanwhsnncstasncdenyusdbessslapeieioesigam 19

Appendix C. Decision and Order of the National Labor

Relations Board, 263 NLRB No. 29 .................. 21

Appendix D. Memorandum Opinion of the United

States Court of Appeals for the Ninth Circuit, Case

SUG: BFS y MORON. cc ocecdeveccastpecsbeeveedsnrsinn 35

Appendix E. Judgment of the United States Court of

Appeals for the Ninth Circuit, Case Nos. 82-7507,

PIES, padcunc cusp eghbdhnatvteecgbaschecdsppabsbaidianens 39

— ff Ta ie Pa ee

iv

TABLE OF AUTHORITIES

Cases Page

Anchor Inns v. NLRB, 644 F.2d 292 (3d Cir. 1981)

A iccdadatcddthinnnscctsencacesnndcnsoceciticatuie 6, 14

Bauer Welding and Metal Fabricators, Inc. v. NLRB,

Gre Be BOW GE Ge, BEER) cs ceccccccrcccccccnsece 9, 20

Hanes Corp. v. NLRB, 677 F.2d 1008 (4th Cir. 1982)

Jamesway Co ». v. NLRB, 676 F.2d 63 (3d Cir. 1982)

ssGblidlipidinijasvenptapdaticducanbiuuuses 5, 7, 8, 9, 10, 11, 12

Michem, Inc., 170 NLRB 362 (1968) ................... 19

NLRB v. Advanced Systems, Inc., 681 F.2d 570 (9th

SEP ED -ccngrbnttbntigaiivceukioendevistnanoeundel 6, 13, 16

SEE - Ssiencccutnnprnidhucensssseenncioiiectumnianetee 6, 14, 20

| ER ee EE 6, 14

AE” eR aaa era a NEB Hak 20

roe RE? Th ea Se”

LE EE EOD, 6, 14

DS RR RE Ts he 6, 15

GR SR BOND Se ckigctdbncrecsutincoasiipesones : ogee 12, 16

Page

NLRB v. Klinger Electric Corp., 656 F.2d 76 (Sth Cir.

| ae ee eee 6, 15, 16

FREED concisntececocnscodiegisg taueebadeoiinense 6, 14, 15, 16

Jnvudanpesesecsesdne covequesesebantadeudsnsboaeiperesene hase 14

CRE APD wncesessespencussntiecsgegevesigeregabeaounnanl 9, 10

Gr. GERD ccccceniboncArenssmscrscecsdipssepssccquundet 6, 13

Randall Burkhart/Randall Division of Textron, Inc. v.

NLRB, 638 F.2d 957 (6th Cir. 1981) ............. 6, 14

Valley Rock Products v. NLRB, 590 F.2d 300 (9th Cir.

FOUED cccccestarcincstococabssuetactesenensceseseontebaiesenen 19

Federal Regulations

COREE EEE EEE EEE EEE EEE EEE EEE EEE HT ee 17

Code of Federal Regulations, Title 29, Sec. 102.69%(g)

ek Ea a aR Ae Es 13

National Labor Relations Act, Sec. 8(a){1) (29 U.S.C.

INI idx :0c ca deethenbncensbidiandeeciaanielitiies y er

National Labor Relations Act, Sec. 8(a)(5) (29 U.S.C.

ID 5 3.u, neenein con dibiavehieletapsiatniednide 2, 4

National Labor Relations Act, Sec. %c) (29 U.S.C.

5 RENE NES 5. Sak ran SE I 2

DEED ctnckesecsnniincueshetibccubnesne~cceususaiiieedbate 5

49 Statutes at Large, Secs. 451-453 (1935) ............. 2

72 Statutes at Large, Sec. 941 (1958) .................0+ 2

80 Statutes at Large, Sec. 1323 (1966) .............-...+ 2 4

United States Code, Title 28, Sec. 1254(1) ............. 2

United States Code, Title 28, Sec. 2112(b) .... 2, 13, 15

United States Code, Title 29, Sec. 160(e) ............... 2

Textbooks

Annual Reports of the NLRB (1978-1981) (Chart 11)

Gaal, ‘‘The NLRB’s Misuse of Witnesses’ Statements

in Election Proceedings,’’ CCH Labor Law Journal,

Es Gey BNE DIED cevcncescapacsnctshonadbuneonson 6

No. ..-...

Supreme Court of the United States

October Term, 1983

NEURO AFFILIATES d/b/a CROSSROADS HOSPITAL,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit.

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the

Ninth Circuit, entered in this proceeding on November 4,

1983.

Citations to Opinions Below.

The Report on Objections of the Regional Director, NLRB

Region 31 (Case 31-RC-5029), printed in Appendix A, in-

fra, was not officially reported. The Decision and Certifi-

cation of Representative issued by the NLRB in Case 31-

RC-5029, printed in Appendix B, infra, was not officially

reported. The Decision and Order of the NLRB in Case 31-

CA-12030, 263 NLRB No. 29, printed in Appendix C,

infra, was not officially reported. The Memorandum Opin-

ion of the United States Court of Appeals for the Ninth

Circuit (consolidated case numbers 82-7507, 82-7631),

printed in Appendix D, infra, was not officially reported.

The Judgment of the Court of Appeals in this case, printed

in Appendix E, infra, was not officially reported.

Jurisdiction.

The judgment of the United States Court of Appeals for

the Ninth Circuit was entered on November 4, 1983, Ap-

pendix E, infra. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1) and 29 U.S.C. § 160(e).

Statutes Involved.

The United States statutes involved are Sections 8(a)(1),

8(a)(5), and 9{c) of the National Labor Relations Act, as

amended, 29 U.S.C. §§ 158(a)(1), 158(a)(5), 159%(c), 49

Stat. 451-453 (1935), and 28 U.S.C. § 2112(b), 72 Stat.

941 (1958), as amended by 80 Stat. 1323 (1966). These

Statutory provisions are set forth in Appendix F, infra.

Statement of the Case.

Petitioner is an acute psychiatric care hospital for juve-

niles in Van Nuys, California. This case arose upon the

filing of an Election Petition by the Union on March 9,

1981.7 On Apri! 3, the parties executed a Stipulation for

Certification upon Consent Election. The NLRB conducted

an election among the employees in the stipulated unit on

May 15. Of the 76 eligible voters, 67 cast ballots, of which

36 were cast for the Union, 17 were against the Union, 13

ballots were challenged and 1 ballot wes void. The Union

made 11 of the 13 challenges.

On May 22, Crossroads filed timely objections to the

Union’s pre-election conduct in making material misrep-

resentations, attempting to entrap Crossroads into making

unlawful promises of benefits, and improperly using Board

7All dates herein refer to 1981 unless otherwise specified.

otliins:

regulation of election campaign to ridicule Crossroads.

Crossroads objected to one of the Uiiion’s last-minute leaflets’

mailed to employees’ homes, in which the Union dared

Crossroads to sign guarantees of improved wages and ben-

efits. The Union deceptively failed to tell employees that it

would be illegal for Crossroads to sign such guarantees. In

this manner the Union attempted to entrap Crossroads into

committing a serious unfair labor practice if it signed the

guarantees, or alternatively, to ridicule Crossroads for re-

fusing to sign written promises.

Crossroads also objected to the Union’s conduct during

the voting when the Union used mass challenges of only

pro-employer voters, discriminating in favor of pro-Union

voters in the same classification. The Union had signed a

stipulation at the prior representation hearing with Cross-

roads, specifically agreeing that group leaders, psycholog-

ical interns, hospital clericals and dietary employees, could

vote in the election. Yet on election day the Union repu-

diated the agreement and challenged the voting eligibility

of only some employees in these agreed upon classifications.

The Union selectively challenged only the pro-employer

employees, while allowing pro-Union employees in these

classifications to vote unchallenged. The Union challenged

only employees who it thought were pro-employer, and it

even later admitted this in a note from its election observer

to challenged voters.‘ Crossroads objected to this trickery

because it intimidated pro-employer voters and gave em-

ployees the impression that the Board’s election procedures

were fixed in favor of the Union.

*The leaflet entitled ‘A GUARANTEE TO YOU"’ is attached as

Exhibit A to Appendix A, infra, the Report on Objections.

“The note of the Union election observer, Bruce Powers, is attached

as Exhibit C to Appendix A, infra, the Report on Objections.

——

Despite the strong evidence presented by Crossroads sup-

porting its objections, the NLRB Regional Director in his

Report (Appendix A, infra) issued July 23, overruled all

Crossroads’ objections and refused to set aside the election.

He also ignored the important and material factual and legal

issues raised by the objections and refused to order a hearing

on the objections, as Crossroads had requested. On March

4, 1982, the Board issued its Decision and Certification of

Representative, adopting the Regional Director's decision

and summarily dismissing Crossroads’ objections.

In order to seek reconsideration and review of the Board’s

decision, Crossroads wrote the Union on March 15, 1982,

that it would refuse to bargain pending appeal. The Union

filed a charge on March 26, 1982, alleging Crossroads had

refused to bargain in violation of §§ 8(a)(5) and (1) of the

National Labor Relations Act, 29 U.S.C. §§ 158(a)(5),

158(a)(1). The General Counsel issued a Complaint alleging

a refusal to bargain on April 23, 1982. Crossroads filed its

Answer to the Complaint on May 5, 1982. On May 17,

1982, the General Counsel filed a Motion for Summary

Judgment, and on May 26, 1982, the Board issued the Order

Transferring Proceeding to the Board and Notice to Show

Cause.

In opposing summary judgment Crossroads again re-

quested a hearing on the substantial material factual issues

raised by its objections and supporting evidence. It also

again asked the Board to review al! the relevant evidence

relied upon by the Regional Director. On August 10, 1982,

the Board in summary fashion denied the request for a

hearing, declined to review the entire record, and again

summarily upheld the Regional Director's decision.’

split Decision sid Onder of the NLRB be preted to Appendia C,

a

This decision was a final order of the Board, and because

Crossroads was engaged in business within California and

the alleged unfair labor practice occurred there, the United

States Court of Appeals had jurisdiction under § 10(f) of

the NLRA, 29 U.S.C. § 160(f). Crossroads timely filed the

Petition for Review on September 2, 1982. The NLRB filed

a Cross Application for Enforcement on October 14, £982.

Crossroads filed with the Court of Appeals an Application

for Leave to Correct Omissions from the Record under

F.R.A.P. 16(b) to require the NLRB to place all relevant

evidence considered by the Regional Director before the

court. By Order dated December 22, 1982, that court re-

ferred Crossroads’ motion to the panel which considered

the case.

On November 4, 1983, by Memorandum Decision (Ap-

pendix E, infra) the Court of Appeals enforced the Board's

order and dismissed Crossroads’ petition for review. The

court held that the Union leaflet daring Crossroads to make

unlawful promises ‘‘did not constitute a material misrep-

resentation or significantly impair the election process.’”* It

also held that the discriminatory mass challenges of pro-

employer voters by the Union, and the NLRB agent’s al-

lowance of such promiscuous challenges, did not impugn

the Board’s election standards. The court also held, without

important evidence in the case.’ Finally, despite the evi-

dence presented by Crossroads in support of its objections,

the court found no substantial, material factual issues present

justifying an NLRB hearing on the objections.

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34 2]80031j 1984

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REASONS FOR GRANTING THE WRIT.

I.

The Court of Appeals’ Refusal to Find the Attempted

Entrapment of the Employer by the Union and Its

Use of Mass, Discriminatory Challenges Against Pro-

Company Voters to Be Objectionable Conduct Con-

flicts With Applicable Decisions of Other Circuits

and Condones Unfair Election Practices.

The Union in this case used deceptive and coercive cam-

paign and election misconduct immediately before and dur-

ing an NLRB conducted representation election’ to improp-

erly influence the employee voters in the election. The Union

used NLRB regulation of employer campaign conduct in an

attempt to entrap the Employer into committing an unfair

labor practice, or alternatively, to ridicule the Employer.

The Court of Appeals in this case ignored the directly rel-

evant authority of the Third Circuit in Jamesway Corpo-

ration v. NLRB, 676 F.2d 63 (3d Cir. 1982), and condoned

the Union's deceptive practices.

In the leaflet, ‘‘A GUARANTEE TO YOU” (Exhibit A

to Appendix A, infra) the Union made signed and sworn

guarantees to the employees. It dared Crossroads to swear

to and sign guarantees for improved wages, sick leave,

health insurance and grievance and arbitration procedure.

The leaflet then stated, ‘WE SIGN OUR GUARAN-

TEES—SEE IF THE CORPORATION WILL SIGN

THEIRS.’’ The Union's leaflet asserted that Crossroads

ae ae _—_ oe en ee.

, ‘ eta we ,

the Board's regulation of ign conduct. to agency sta-

tistics, the NLRB conducts some 7,000 to 8,000 elections annually

. Obj t)

= am

would not sign guarantees. Crossroads, however, was le-

gally precluded from making guarantees of improved wages

and benefits during the critical pre-election period, though

employees could not, of course, be expected to know the

state of the law. Yet, the Union leaflet nefariously omitted

this crucial fact. In essence, the Union was daring Cross-

roads to commit a serious unfair labor practice or suffer

ridicule and rejection for not signing guarantees. This cam-

paign trickery during the final days before the election mis-

led the employees and thereby affected the outcome of the

election. Even worse, the Union utilized the Board’s own

regulation of employer conduct to ridicule Crossroads and

attempt to entrap it into committing an unfair labor practice.

In a virtually identical case, Jamesway Corp. v. NLRB,

676 F.2d 63, 69-72 (3d Cir. 1982), the Third Circuit recently

reversed the Board and found that such attempted entrap-

ment and ridicule warranted setting aside an election. In

Jamesway on the eve of the election (as is the case here),

the union presented the employer with a written demand for

a written guarantee that there would be no layoffs in the

future. When Jamesway refused to sign the guarantee, the

union distributed the unsigned document that evening and

on the morning of the election with a notation that the

employer refused to sign the guarantee. The Board, as here,

found nothing objectionable about such conduct because the

handbill was literally true (i.e., the employer had refused

to sign the guarantee). But the Third Circuit disagreed,

finding such attempted entrapment and ridicule warranted

setting aside the election. The Third Circuit quoted Blake’s

**Auguries of Innocence,’’ stating, *‘A truth that’s told with

bad intent Beats all the Lies you can invent.’ /d. at 70 n.

10.

The Third Circuit noted that an employer is prohibited

from signing such a guarantee because to do so would be

<thdnite

tantamount to bargaining with the union before the election,

and amounting also to an unlawful pre-election promise. /d.

at 70 n. 9. It found that distribution of the unsigned guar-

antee ‘‘created the impression that unless the Union were

elected, newly hired workers faced the risk of layoff.’’ Jd.

at 70. It also found that job security was a material subject

which would impact on voter free choice, and because of

the timing the employer had no opportunity to respond.

Thus:

**The handbill’s message was not simply a general

representation that the Union could better protect the

job security of employees.* * * Rather, the handbill

indicated that Jamesway’s specific failure to guarantee

the job security to its employees in writing—a promise

Jamesway could not lawfully have made on the eve of

the election, supra at note 9—demonstrated that the

jobs of the newly hired employees were at peril without

the Union.”’ /d. at 71.

Based on this attempted entrapment and ridicule of the em-

ployer, the Third Circuit set aside the election.

Likewise here the unsigned ‘‘guarantee’’ received by em-

ployees two days before the election could not be effectively

answered, because Crossroads did not receive a copy until

the afternoon of the day before the election.’ The Union

challenge dealt with matters of central concern to employ-

ees—wages, sick leave, health insurance, and a grievance

procedure. See NLRB v. Sunkist Growers, Inc., 532 F.2d

¥ +o:

Additionally, Crossroads was placed in a no-win situation where it

could not possibly make any effective even if it had had

md draed an F wenrenngs <n phe F.2d 1008 (4th Cir. 1982)

possible where union called employer's attorney a ** \

19825 employer couldnt ef Inc. v. NLRB, 676 F.2d 314

(Sh Ci 1988

).

pana.

could not effectively rebut union's inaccurate

law that employer can never reduce wages or

—_10—

1239 (9th Cir. 1976). As in Jamesway, the Union’s trickery

clearly gave employees the impression that without the Union

no improvement in these critical areas could be achieved.

Although the directly relevant Jamesway decision was

cited and argued at length by Crossroads in its appeal, the

Ninth Circuit failed to even mention this case in its decision,

and it found nothing objectionable in the Union’s use of

this deception. The Ninth Circuit's refusal to follow the

applicable Jamesway precedent creates a conflict in the cir-

cuits on this important issue of election campaign miscon-

duct. The Ninth Circuit’s decision also condones and even

encourages Unions to use deceptive campaign practices,

- including misuse of the NLRB’s own election regulations,

to ridicule the Employer and confuse the voters.

Il.

The Court of Appeals’ Use of an ‘‘ Abuse of Discretion’’

Standard to Review Factual Determinations Made

by the NLRB Conflicts With Applicable Decisions

of Other Circuits Which Require That the Board’s

Factual Findings Be Supported by Substantial

Evidence on the Record as a Whole.

The Court of Appeals applied an ‘‘abuse of discretion’

standard of review to both the Board's legal and factual

findings. Its standard of review was as follows:

**“Because we find that the Board did not abuse its

discretion in certifying Hospital and Service Employ-

ees Union Local 399 (the union) as bargaining agent

for Neuro Affiliates’ employees, we enforce the board’s

order.’’ (Emphasis added).

This ‘‘abuse of discretion’’ standard of review conflicts

directly with the Third Circuit's Jamesway, supra, decision

which explicitly rejects that standard in favor of the stricter

“‘substantial evidence’’ test. /d., 676 F.2d at 66-69. In

=)

Jamesway the NLRB argued that the standard of review of

NLRB determinations of election misconduct was an abuse

of discretion standard, but the Third Circuit strongly dis-

agreed, stating:

‘*The Board in its attempt to limit the power of

review exercised by this Court over the Board’s de-

termination regarding the conduct of elections confuses

the standard of review a court should use to examine

the propriety of election procedures and policies es-

tablished by the Board with the standard appropriate

for review of the Board’s application of those proce-

dures and policies to specific elections. That confusion

is understandable, since our decisions have not care-

fully articulated the distinction. Nonetheless, the sub-

stantial evidence standard remains the proper one un-

der which Board determinations regarding the impact

of alleged misconduct on the fairness of an election

must be judged.’’ Id., 676 F.2d at 67. (Emphasis

added).

Later in its decision the Jamesway court again reaffirmed

that substantial evidence must support the Board’s deter-

minations regarding election misconduct. The court stated:

‘‘Assuring the reasonableness of the Board’s deter-

minations is precisely what is required under the sub-

stantial evidence test, which we now reaffirm is to be

applied to Board determinations regarding the effect

of alleged misconduct of an election. In determining

whether a particular incident so disrupted an election

as to warrant setting the election aside, a court must

satisfy itself that the Board’s determination regarding

the impact of the incident at issue is supported by

substantial evidence on the record considered as a

whole’’. /Jd., 676 F.2d at 69.

The Third Circuit’s Jamesway decision, applying the

“substantial evidence’’ test, thus conflicts directly with the

i ee

Ninth Circuit’s use of an ‘‘abuse of discretion’’ standard in

this case. Applying different standards to similar facts, these

courts reached directly opposite results. On an issue as im-

portant as the standard of review to be applied by the circuit

courts in NLRB election misconduct cases a uniform test is

necessary, and this Court should resolve this conflict among

the courts of appeals.

Ii.

The Failure of the NLRB and the Court of Appeals to

Review All Evidence Relied Upon by the NLRB

Regional Director in Making His Factual Deter-

minations Violates Due Process and the Established

Rule in Four Other Circuits.

It was of course impossible for the Court of Appeals to

determine whether substantial evidence on the record as a

whole supported the NLRB’s findings in this case, because

the court did not possess all the evidence relied upon by the

NLRB Regional Director in his Report on Objections. The

Board itself did not have all the evidence before it when it

decided the case, because the Regional Director did not

forward the Union-submitted affidavits to the Board. Five

Circuits, including the Ninth Circuit, have condemned the

NLRB'’s practice of failing to review all the evidence before

determining whether objectionable conduct occurred. '°

Only the Ninth Circuit has adopted a ‘harmless error’’

exception'' to the universal rule in the circuit courts that the

reviewing NLRB and court must review all the evidence.

"See cases cited at footnote 7, supra.

"In the instant case and in NLRB v. Eskimo Radiator Mfg. Co., 688

for faling to review al the evidence relied ony the Regional Dieter

to review

in making’ his factenl-Gindings en the grouse Gat failure was

harmiess error.

|

The primary fallacy in the Ninth Circuit’s harmless error

approach is that without reviewing all the evidence it is

impossible for the court to determine whether or not the

omitted evidence is harmless.

In a rash of recent cases, the NLRB’s attempts to ‘‘stone-

wall’’ behind technical procedural rules to keep evidence

relied upon by the Regional Director from being reviewed

by the Board and later by the courts have been flatly rejected

by the federal appeals courts. In the seminal case, Prestolite

Wire Division v. NLRB, 592 F.2d 302 (6th Cir. 1979), the

Sixth Circuit interpreted the predecessor Section 102.69%(g)'

of the Board’s rules and the court decided that this rule

normally required the Regional Director to transmit the en-

tire record to the Board, rather than placing the burden on

the employer. The court reasoned that effective judicial

review of the Regional Director’s decision required a con-

sideration of all the evidence relied upon by him. In the

instant case, as in Prestolite, Crossroads was entirely with-

out power to transmit affidavits taken by the Board agents

from Union officials, employees or others. These affidavits

which were relied upon by the Regional Director in his

decision were not part of the record before the Board or

Appeals Court.

ab thn

ruled that the entire record must be sent to the Board and

Courts in all cases. NLRB v. North Electric, 644 F.2d 580

(6th Cir. 1981); NLRB v. RJR Archer Inc., 617 F.2d 161

(6th Cir. 1980); NLRB v. Curtis Noll Corp., 634 F.2d 1027

(6th Cir. 1980); Randall Burkhart v. NLRB, 638 F.2d 957

(6th Cir. 1981); ATR Wire and Cable Co. v. NLRB, 671

F.2d 188 (6th Cir. 1982).'° The Sixth Circuit in NLRB vy.

North Electric, supra, held that it is an abuse of discretion

for the Board to adopt the report of the Regional Director

without reviewing all the evidence he relied upon. The court

stated:

‘*If the Board does not look at the evidence it can do

nothing but rubber stamp the Regional Director’s de-

cision. Meaningful review is impossible without a re-

view of the evidence. In addition, if the Board does

not reviev the evidence and make it part of the record,

it is impos iible for a court to review the Board’s action,

since there is no record to review. We hold that it is

an abuse of discretion for the Board to adopt the report

of the Regional Director without reviewing the docu-

mentary evidence relied upon by the Regional Direc-

tor.’’ (Emphasis added). /d., 644 F.2d at 584.

The Fourth Circuit followed Prestolite in NLRB v. Cam-

bridge Wire Cloth Co., Inc., 622 F.2d 1195, 1198 (4th Cir.

1980), and remanded the case to the Board with instruction

that all the evidence before the Regional Director be trans-

"In NLRB v. ARA Services Inc., 678 F.2d 440, 444 n. 9 (3d Cir.

Sixth Circuit's ATR

3

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A

5

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== | 5.

mitted to the Board and subsequently to the court. Likewise,

in NLRB v. Decibel Products, 657 F.2d 727, 729 (Sth Cir.

1981), the Fifth Circuit adopted the North Electric rule and

remanded the case to the Board to consider all the evidence.

The court held that the Board’s failure to review all the

evidence denied the employer procedural due process and

was an abuse of discretion.

In NLRB v. Klinger Electric Corp., 656 F.2d 76, 81 (Sth

Cir. 1981), the Fifth Circuit relied upon the Board’s own

regulations and due process to require transmission of the

entire record to the Board and court. The court further relied

upon 28 U.S.C. § 2112(b) which states that the record on

review in agency proceedings includes ‘‘evidence’’ before

the ‘‘agency, board, commission or officer concerned.’’ It

stated:

‘*Furthermore, regardless of the Board’s own pro-

cedures, 28 U.S.C. §2112(b) requires that affidavits

used as the evidentiary basis of decisions of the regional

director and the Board must be part of the record avail-

able to this court in its review of those decisions. Of

course, this statute does not impose requirements upon

the internal procedures of the Board, but administrative

efficiency is certainly served if the Board has before

it the same record that we will require for appellate

review of the Board’s decision.’’ (Emphasis added).

The Ninth Circuit initially stated its agreement with the

Sixth Circuit’s North Electric holding. NLRB v. Belcor,

Inc., 652 F.2d 856, 859 (9th Cir. 1981). It joined the group

of courts critical of the Board’s failure to review the entire

record in election objection cases. In NLRB v. Consolidated

Liberty, Inc., 672 F.2d 788 (9th Cir. 1982), the Ninth Cir-

cuit reversed the Board because of the Regional Director's

failure to forward the entire record to the Board. The court

remanded the case to the Board ‘‘for further proceedings

—l Raiee

at which it must consider all relevant evidence which was

before the Regional Director.’’ Id., 672 F.2d at 790 (Em-

phasis added). The Court cited, relied upon, and approved

Klinger Electric, supra, and North Electric, supra, stating:

“If the Board does not look at the evidence, it can

do nothing but rubber stamp the Regional Director's

decision, and this could raise serious due process prob-

lems.’” Jd., 672 F.2d at 790.

In NLRB v. Advanced Systems, Inc., 681 F.2d 570 (9th Cir.

1982), the Ninth Circuit reaffirmed its ruling in Consoli-

dated Liberty.

In the instant case and in NLRB v. Eskimo Radiator Mfg.

Co., 688 F.2d 1315 (9th Cir. 1982), the Ninth Circuit de-

viated from the established rule in the circuit courts and

created the ‘‘harmless error’’ exception, without even re-

viewing the omitted evidence to determine whether it was

material or harmless. Such an abdication of the court's ju-

dicial review responsibility denied Petitioner due process

and is directly contrary to the decisions of all other circuits

which have addressed this issue. This Court should grant

certiorari to correct the lower court’s glaring error and achieve

uniformity among the circuit courts.

IV.

The NLRB and Circuit Court Denied Petitioner a Hear-

ing on Substantial and Material Factual Issues, De-

spite Crossroads’ Presentation of Evidence Strongly

Proving That the Union Used Mass, Discriminatory

Challenges to Intimidate Pro-Company Voters.

The NLRB Regional Director, the Board, and the Court

of Appeals have all thus far denied Crossroads and its em-

ployees a hearing on the significant factual issues relating

to the conduct of the election. The Board’s own rules and

the pronouncements of the circuit courts require a hearing

rs

on election objections which raise ‘‘substantial and material

factual issues.’’'*

Crossroads presented substantial evidence which dem-

onstrated that the Union used mass challenges to discrim-

inate against and intimidate pro-employer voters.'* The Re-

gional Director made an enigmatic factual determination that

the Union had no discriminatory (or as he termed it ‘‘anti-

Union’’) motive in making the challenges (Appendix A, p.

9). He improperly based his finding in part on evidence

received from Union witnesses which was unavailable to

the Board and was not in the record on appeal before the

Ninth Circuit.

The Court of Appeals erroneously held that Petitioner’s

presentation of evidence showing mass, discriminatory chal-

lenges by the Union of pro-employer voters was insufficient

basis for a hearing or for setting aside the election. It stated

that further evidence of such challenges ‘‘could not have

affected the outcome of this case’’ (Appendix D, p. 38),

holding that even if the Union’s invidious motive was ap-

parent to the voters waiting in line to vote, the mass chal-

lenges had no impact on the election.

"29 C.F.R. 102.69(d).

What the Board and Circuit Court refused to recognize

is that such mass, discriminatory challenges against known

pro-employer voters is, as a matter of law, misconduct which

has an immediate impact on the voters’ free and unfettered

choice. There is little doubt that the Board and Ninth Circuit

would not allow other forms of invidious discrimination by

the parties to an election. They would certainly not allow

a Union to intimidate and harass black voters by making

mass challenges of all black employees on the ostensible

basis that they were supervisory or professional employees,

while white employees in the same job classifications (stip-

ulated to be within the bargaining unit) were allowed to

vote unchallenged. Yet the Board and court allowed nearly

identical misconduct to occur in the instant case with the

tacit approval of the Board election agent, the Regional

Director, the Board, and the Ninth Circuit.

In a small hospital such as Crossroads, the employees

almost all know each others’ voting preference before an

election. The NLRB itself has invoked the ‘‘small plant

doctrine’ in numerous cases, holding that employees and

management know the pro- or anti-Union sympathies of

employees in a small bargaining unit. Without having to

state his discriminatory purpose, it was apparent to all em-

ployees waiting in line to vote, that Union election observer

Powers was challenging all pro-employer voters. As one

employee (Gonzalez) stated in her affidavit, she knew from

personal knowledge that at least 8 of the 11 voters chal-

lenged by the Union, were challenged because they were

against the Union. Gonzales stated regarding. the Union

election observer’s note, ‘‘It confirms my feeling that I and

other employees were challenged because of our pro-

employer sentiment.’’

That the employees were aware of the Union’s glaring

discrimination is evident in the record. Group leader Witt

mii Gione

was upset about the Union’s discriminatory challenge of her

and denounced it in front of voters waiting in line to vote.

The Board agent unwittingly lent further weight to the ap-

pearance of bias by ordering Witt to leave the voting area.

The Board has held that, “The final minutes before an

employee casts his vote should be his own, as free from

interference as possibie.”’ Michem, Inc., 170 NLRB 362

(1968). Here, in the final seconds before voting, the Union

discriminatorily challenged eleven pro-employer voters on

a specious basis, while pro-union voters voted unmolested.

No clearer harassment of pro-employer voters could be

shown. The Board’s processes were prostituted, giving the

election procedures the appearance of partiality favoring the

Union. These factors had a definite impact on the voters as

they waited to cast their ballots, and upon the challenged

voters who correctly believed they were singled out because

of their anti-Union views. The prima facie evidence pre-

sented by Crossroads requires that a hearing be held. Both

the effect of the discriminatory challenges on employees and

the motive for the challenges depend on a determination of

the state of mind of Powers and of the challenged em-

ployees, findings which cannot be made via summary judg-

ment. The Board’s use of summary judgment to determine

State of mind is improper. Valley Rock Products v. NLRB,

590 F.2d 300 (9th Cir. 1979).

Rather than remand the case back to the Board to hold

an evidentiary hearing, however, the court simply accepted

all of the employer’s factual allegations as true, stating:

**Since no evidentiary hearing was ever had, we are

bound on this record to accept as true the company’s

version of the alleged incidents. . . .”’ Id.

Accepting as true the evidence produced by Petitioner

by the Union which the employees viewed as improper

at

discrimination, affecting their free choice in the election.

This is plainly grounds for overturning an election for such

conduct irremediably taints laboratory conditions. Cross-

roads presented prima facie evidence of objectionable elec-

tion misconduct by the Union; the Director’s investigation

is no substitute for a hearing. NLRB v. Claxton Manufac-

turing, 613 F.2d 1364, 1366 (Sth Cir. 1980); Anchor Inns

v. NLRB, 644 F.2d 292, 294 (3d Cir. 1981).

In Bauer Welding and Metal Fabricators, Inc. v. NLRB,

676 F.2d 314 (8th Cir. 1982), the court ruled:

**. . . where the employer has specifically controverted

the subsidiary factual determinations made by the Re-

gional Director aad has offered proof which, if true,

would raise material factual issues, this court has held

that ‘the company must be afforded the opportunity to

produce evidence’ at a hearing wherein the testimony

of witnesses may be subject to the ‘cleansing rigors of

cross examination.’ ’’ (Citations omitted). Jd., at 316.

In NLRB v. ARA Services, Inc., 678 F.2d 435 (3d Cir.

1982), the Third Circuit ruled that the Regional Director’s

findings were ‘‘flawed because he had not assumed the truth

of [the employer’s] allegations, nor were his findings the

product of a hearing’’ in which the employer participated.

The court noted the myriad due process difficulties where

the Director substitutes his ex parte investigation for a hear-

ing where factual conflicts are presented: (1) the union wit-

nesses are not subject to cross-examination by the employer;

(2) the union witnesses’ statements can be “‘laundered’’ by

the Director because they are not part of the record evidence;

(3) the Regional Office may not have asked the right ques-

tions or investigated fully; (4) even the identity of the union

witnesses is not known. All of these inherent due process

violations are present here, where the Regional Director

discounted the evidence produced by Crossroads and instead

—

credited the Union version of the events.

Petitioner submits that in this case where it has produced

prima facie evidence of attempted entrapment, discrimi-

natory mass challenges, and other abuses of Board law and

processes by the Union, a hearing must be granted to insure

the integrity of the Board processes. The Regional Director's

cursory investigation is no substitute for a full evidentiary

hearing regarding the Union’s gross abuse of Board

processes.

This Court should grant certiorari to correct the erroneous

decisions of the Board and Court of Appeals which denied

Petitioner its right to a hearing on the substantial material

factual issues surrounding the Union’s use of mass, dis-

criminatory election challenges to intimidate pro-employer

voters.

V;

Conclusion.

For the foregoing reasons, this Petition for Writ of Cer-

tiorari should be granted.

Respectfully submitted,

STANLEY E. Tosin,

JAMES A. BOWLES,

HILL, FARRER & BurRRILL,

Attorneys for Petitioner,

Neuro Affiliates d/b/a

Crossroads Hospital.

APPENDIX A.

Report on Objections of the Regional Director National

Labor Relations Board, Region 31, Case 31-RC-

5029.

United States of America Before the National Labor Re-

lations Board Region 31.

Neuro Affiliates d/b/a Crossroads Hospital, Employer and

Hospital and Service Employees Union, Local 399, AFL-

CIO, Petitioner. Case 31-RC-5029.

Report on Objections

Pursuant to a petition filed March 9, 1981,' and a Stip-

ulation for Ceriification Upon Consent Election thereafter

executed by the parties, an election by secret ballot was

conducted by May 15 under my direction and supervision

among employees of the Employer in the unit agreed ap-

propriate.’ After the election, each party was furnished a

tally of ballots which showed that of approximately 76 el-

igible voters, 67 cast ballots, of which 36 were cast for the

Petitioner, 17 were cast against the Petitioner, 13 were chal-

lenged, and | ballot was void. The challenged ballots are

not sufficient in number to affect the results of the election.

On May 22, the Employer filed timely objections to con-

duct affecting the results of the election, a copy of which

was duly served on the Petitioner. Pursuant to Section 102.69

of the Board’s Rules and Regulations, Series 8, as amended,

after reasonable notice to the parties to present relevant

all other employees, and supervisors as defined in the Act.

a

evidence, | have completed an investigation of the objec-

tions, duly considered all evidence submitted by the parties

and otherwise disclosed by the investigation, and hereby

issue this report thereon.

The Objections

The objections in their entirety are set forth in the indented

paragraphs below.

Objection No. |

On or about May 13 and 14, 1981, Petitioner attempted

to entrap the Employer into committing unfair labor

practices. On these dates Petitioner mailed literature to

the homes of the Employer’s employees. The literature

contained guarantees to the employees sworn to and

signed by officials of Petitioner. On the opposite page

were a list of guarantees which the Petitioner dared the

Employer’s Administrator, Barbara Landis to sign. The

guarantees included promises of wage increases, prom-

ises of improved sick leave benefits, promises of an

improved health insurance program, and promises of

the institution of a grievance and arbitration procedure.

The timing of the communication, which was mailed

to employees’ homes precluded an effective reply or

explanation by the Employer. The Employer could not

sign the guarantee, or it would be committing an unfair

labor practice by promising benefits during the critical

pre-election period. The Petitioner misled

into believing that the Employer would not (rather than

could not) sign such guarantees, and at the same time

attempted to entrap the Employer into committing a

gaged in this insidious misconduct to influence the

employee's choice of a bargaining representative and

such was its effect.

The investigation established that Petitioner mailed a

campaign brochure entitled “‘A GUARANTEE TO YOU”

=

to unit employees. (A copy of this document is attached

hereto and designated Exhibit ‘‘A’’.) The Employer’s ev-

idence reveals that two unit employees received *‘A GUAR-

ANTEE TO YOU”’ on May 13 at their respective homes.

The Employer did not present evidence concerning the date(s)

on which the remaining approximately 74 unit employees

received this brochure. The Employer became aware of ‘‘A

GUARANTEE TO YOU”’ on May 14. The Petitioner states

that an official of Petitioner placed all copies of ‘‘A GUAR-

ANTEE TO YOU”’ in the U.S. mail on May 8 in downtown

Los Angeles.’ The investigation further revealed that Peti-

tioner distributed ‘*‘A GUARANTEE TO YOU’”’ in response

to the Employer’s earlier mailing to employees entitled “‘A

LOOK AT WAGE IMPROVEMENTS FOR PSYCHIAT-

RIC AIDES: STARTING AND TOP-HOURLY RATES..”’

(A copy of the Employe:’s literature is attached hereto and

designated Exhibit *‘B.’’) This document illustrates wage

improvements of psychiatric aides from 1975 to 1981, and

states, in pertinent part:

. . . (P)lease note that your wage scale is competitive

with other hospitals in the area, and even slightly higher

on average. . . . It would also make sense for you to

try to obtain similar, valid information from Local

#399. We care enough to warn you against being so

easily swayed by their pie-in-the-sky promises. What,

precisely, has been offered in writing?

The investigation did not establish that the allegedly ob-

jectionable portion of Exhibit '‘A’’ materially or substan-

tially affected the results of the election as described in

Objection No. 1. The Board’s standard of review for alleged

misrepresentations, which has been set forth in Hollywood

*Petitioner’s office is located in downtown Los Angeles and the Ex-

celsior list indicates that unit employees reside in the metropolitan area.

widens

Ceramics Company, Inc., 140 NLRB 221, and recently

adhered to in General Knit of California, Inc., 239 NLRB

619, is as follows:

[A]n election should be set aside only where there has

been a misrepresentation or other similar campaign

trickery, which involves a substantial departure from

the truth, at a time which prevents the other party or

parties from making an effective reply, so that the

misrepresentation, whether deliberate or not, may rea-

sonably be expected to have a significant impact on

the election.

Based on the evidence presented and the investigation as

a whole, I conclude that the substance of the allegedly

objectionable portion of Exhibit ‘‘A’’ does not constitute.

misrepresentation within the meaning of the cited cases.

Petitioner’s challenge to the Employer to provide written

guarantees of improved wages and benefits, which is found

on page 2 of Exhibit *‘A,”’’ amounts to no more than typical

campaign rhetoric of the type amenable to employee eval-

uation. Taking into account the Employer’s earlier challenge

to Petitioner to provide written guarantees with respect to

wage increases (Exhibit ‘‘B’’), I conclude that Exhibit *‘A’’

was written and distributed in such a manner and style that

the Employer’s unit employees could readily identify it as

the Petitioner’s campaign propaganda. In contending that

the challenge presented in Exhibit ‘‘A’’ constitutes decep-

tive campaign trickery, the Employer emphasizes that it

would have committed an unfair labor practice by signing

the Petitioner’s challenge. While that position may be cor-

rect, it does not follow that the Employer is correct in

assuming that Petitioner has abused Board processes by

distributing Exhibit ‘‘A.’’ Petitioner's brochure does not

mention, directly or indirectly, the Board’s law or proce-

dures in the area of unlawful promises of benefits. Inasmuch

~~

as I have concluded that Petitioner's challenge, as expressed

in Exhibit ‘‘A,’’ does not constitute a material misrepre-

sentation, I further conclude that it is not necessary to decide

whether the Employer had enough time to reply.

Based on the foregoing and the investigation as a whole,

I conclude that the evidence with respect to this Objection

is insufficient to warrant setting aside the election, and I,

therefore, will recommend that Objection No. 1 be overruled.

Objection No. 2

During the election, the NLRB agent allowed the Union

election observers to make full scale challenges to the

votes of only anti-Union employees, while at the same

time she innocently precluded the Employer’s ob-

server, Estrella Gonzalez, the opportunity to challenge

voters who were pro-Union. The appearance of bias

by the NLRB seriously influenced the employees’

choice of a bargaining representative.

Objection No. 3

During the election, the Petitioner, through its election

observer, subverted the NLRB’s procedures for con-

ducting a fair election by engaging in full scale chal-

lenges of the votes of only anti-Union employees. The

Union observers engaged in an underhanded (sic*)

classification vote first. Then the Union observers chal-

lenged all anti-Union employees in that classification

solely on the basis of their classification. The Petitioner

had stipulated to the appropriate bargaining unit, which

contained these same classifications. The Petitioner was

attempting to disenfranchise only anti-Union employ-

ees, and this became clear to the employees waiting in

line to vote. When the Employer’s election observer

attempted to stop this mockery of the Board's election

*The Regional Director misquoted the objection omiiting: ‘scheme,

whereby had pro-Union employees in a particular’.

= =

processes by seeking instruction from the Employer's

officials, she was first detained by the NLRB agent.

Then, the NLRB agent allowed a pro-Union employee

to vote whom Estrella Gonzalez was intending to chal-

lenge. The pro-Union employee voted while Estrella

Gonzalez was seeking instructions from Employer of-

ficials. The Union's use of mass challenges to discrim-

inate against anti-Union voters and the NLRB agent’s

acquiescence in this misconduct influenced the em-

ployee’s choice in the election. Anti-Union employees

suffered disparate treatment at the polls by the Union’s

misconduct and the Board agent's failure to allow the

Employer's election observer to stop the Union’s dis-

criminatory challenges by proper Employer counter-

challenges.

I will treat Objections Nos. 2 and 3 together inasmuch

as they both raise issues relating to the manner in which

challenged ballots were processed during the election on

May 15. The afternoon voting session took place from 3

p.m. to 3:45 p.m. Each party exercised its privilege to have

two observers present during each of the two scheduled

voting sessions. The Employer’s observers at the afternoon

session were employees Estrella Gonzalez and Ronald Gade.

Voting arrangements approved by the Board Agent in charge

of the election provided that two observers, one from each

party, would circulate together through the Employer's fa-

cility at the beginning of each session to announce that the

polls were open. Under this arrangement, the remaining two

observers were responsible for marking off voters’ names

from the eligibility list and for challenging voters. The Em-

ployer’s afternoon observers decided that Gade would make

voting announcements and that Gonzalez would remain in

the polling place. Prior to the afternoon session, Gonzalez

was informed that the Employer's labor relations attorneys

would be available to answer questions in the administrator's

me a

office in the facility.

During the early portion of the afternoon session, Gon-

zalez decided that she needed clarification on whether to

challenge one particular voter, a psychology intern. Ac-

cording to Gonzalez, she asked the Board Agent’s permis-

sion to leave the polling area to ask the Employer’s attorneys

if she should challenge the intern. At the Board Agent’s

suggestion, Gonzalez remained for a short time until Gade

returned to the polling area. Upon Gade’s return, Gonzalez

told him that she wanted to challenge the intern. Gonzalez

then, with the Board Agent’s permission, left the area for

a short time, departing before the intern in question had cast

a ballot. Gonzalez did not ask whether the election would

continue in her absence. The Employer does not assert that

the Board Agent assured Gonzalez that the election would

be suspended in her absence. Nevertheless, Gonzalez as-

sumed that the intern would not be allowed to vote while

she was consulting with Employer representatives away from

the polling area. Before the polls opened for the afternoon

session, the Board Agent had properly instructed all ob-

servers, including Gade and Gonzalez, that challenges must

be made before ballots are placed in the ballot box.

Gade was present when the psychology intern in question

voted, but Gade did not attempt to challenge this voter. The

Employer did not provide any evidence that employees wait-

ing to vote were aware of the fact thet the Employer had

missed its opportunity to challenge the intern. When Gon-

zalez returned a-short time later, she discovered that the

intern had already voted. Gonzalez stated that during her

absence, she had received instructions to challenge the in-

tern. As noted above, Gonzalez was unable to carry out

these instructions. The investigation established that this

was the only incident in which the Employer’s observers

were allegedly denied an opportunity to thwart ‘‘the Union’s

scheme’’ through the use of ‘‘counter-challenges.”’

The Employer further contends in Objections Nos. 2 and

3 that Petitioner manipulated the chailenge procedure in

various ways that passed unquestioned by the Board Agent.

The Employer's position is that the Board Agent’s alleged

tolerance of the Petitioner’s ‘‘trickery’’ and her failure to

provide an opportunity for Gonzalez to challenge the intern

should be viewed together as one course of conduct. Seen

in this light, the Employer contends that the Board Agent’s

conduct ‘‘tended to foster in the minds of the voters the

impression that the Board is not neutral with regard to the

choices on the ballot.’ The Employer relies upon Glacier

Packing Co., 210 NLRB 571.

The investigation established that of 13 challenges, Pe-

titioner challenged 11 voters, the Employer challenged one

and the Board Agent challenged one. When challenging a

voter, the Petitioner’s observer stated that the Petitioner’s

challenge was based upon the voter’s status as a professional

or a confidential employee. Both of these categories were

specifically excluded from the unit in the parties’ election

agreement. In the case of two challenges, the Petitioner’s

observer announced the challenges after the voters had

marked their ballots, but before the ballots were placed in

the ballot box. The Employer did not provide any evidence

that, during the critical pre-election period or during the

election itself, any agent of Petitioner made any statement

to, or in the presence of, employees that its challenges were

based upon anti-union sympathies.

During the afternoon session, a small number of group

leaders and phychology interns voiced unhappiness over the

fact that they had been challenged. The Board Agent prop-

erly explained the challenge procedure to these employees

and processed their challenged ballots in accord with Board

procedures. When one or two of these employees attempted

a

to prolong this discussion, the Board Agent promptly asked

them to leave the polling area so as to avoid disrupting the

election. The voters who had already cast challenged ballots

complied with the Board Agent’s instructions. The Em-

ployer presented no evidence that any of these challenged

voters reasonably believed that Petitioner had challenged

them on the basis of anti-union attitudes. Similarly, the

Employer presented no evidence that the Petitioner’s ob-

servers engaged in any specific improper conduct during

this incident. However, the Employer generally alleges that

the Petitioner's challenges were motivated by considerations

of voters’ anti-union sympathies.* The Employer's evidence

in support of this general allegation is that within the week

following the election, Bruce Powers, an observer for Pe-

titioner at each session, allegedly stated in writing that his

reason for challenging voters was their anti-union sympa-

thies. (A copy of Powers’ two-page note is attached hereto

and designated Exhibit ‘‘C.’’ Yet, one of the Employer’s

witnesses stated during the investigation that at least one

employee known for an anti-union viewpoint voted without

challenge by Petitioner. The Employer further contends that

Petitioner, in a manner as yet unidentified, controlled the

order in which employees arrived to vote, thereby ensuring

that employees waiting to vote watched while Petitioner’s

observer challenged all anti-union voters. The Employer

presented no evidence to support this aspect of Objections

Nos. 2 and 3.

Based upon the above and the investigation as a whole,

I conclude that the manner in which challenges were proc-

toes Seeman msetan

Petitioner's 11 challenges were so . This witness based her state-

—_ upon her own personal view of the union sympathies of

11 voters.

celine.

essed did not compromise the fair conduct of the election.

The Employer’s evidence is insufficient to support a finding

that Petitioner’s challenges were motivated by any reason

other than a legitimate desire to test the inclusion of psy-

chology interns and group leaders in the bargaining unit.

The investigation established that these two classifications

were included in the stipulated voting unit at the Employer’s

request. Petitioner agreed to their inclusion in the interest

of expediting the election. During the campaign period,

employee Powers was unsuccessful in communicating with

employees in these classifications about unionization and

the election. Powers did learn, however, that several interns

and group leaders believed that they should have been ex-

cluded from the unit as professionals. Hence, Powers, as

Petitioner’s observer, challenged most of the interns and

group leaders. Officials of Petitioner expected a post-

election investigation and decision concerning the inclusion

of these two classifications. While Powers’ note to certain

employees (Exhibit ‘‘C’’) is somewhat ambiguous, a fair

reading of its contents does not support the Employer’s

position that Powers has admitted that anti-union consid-

erations motivated Petitioner’s challenges. Since Powers

wrote the note days after the election, the note itself had

no impact on the election process. Finally, there is no direct

evidence that Petitioner engaged in any conduct that caused

employees to believe that challenges were motivated by anti-

I also conclude that the Employer’s evidence is insuffi-

cient to support a finding that the Employer was unable to

challenge one psychology intern due to the manner in which

the election was conducted. Gonzalez chose to leave the

polling area during the election when she knew that she

wanted to challenge the intern. Gonzalez told Gade of her

desire to make the challenge. Although fully instructed in

proper challenge procedures, Gade neglected to challenge

the intern when he had the opportunity to do so. Gonzalez’

assumption that the election would be suspended in her

absence was based on nothing more than unfounded spec-

ulation. In all the circumstances, I conclude that the Board

Agent did not abuse her discretion by continuing the election

in Gonzalez’ absence. Moreover, there was absolutely no

discussion of this incident on the day of the election. Ac-

cordingly, there was no opportunity for other voters to be

influenced by knowledge of what the Employer has asserted

was the appearance of Board antipathy toward one party’s

right to challenge voters. See Newport News Shipbuilding

and Dry Dock Compary, 239 NLRB 82 (1978).

Inasmuch as I have concluded that the Board Agent did

not tolerate Petitioner’s abuse of the challenge procedure,

and that the Board Agent did not interfere with the Em-

ployer’s right to challenge voters, it follows that the Board

Agent engaged in no conduct that tended to foster in the

minds of voters the impression that the Board was not neutral

as between the choices on the ballot. Thus, I also conclude

that the Employer’s reliance upon Glacier Packing, supra,

is misplaced. In that case, the Board found that the Board

Agent had engaged in affirmative conduct that destroyed

the appearance of the Board’s neutrality. I have concluded

that the Board Agent herein did not engage in any such

ambiguous conduct during the course of the election.

Based upon the foregoing and the investigation as a whole,

I conclude that the evidence with respect of Objections Nos.

2 and 3 is insufficient to warrant setting aside the election.

I, therefore, will recommend that Objections Nos. 2 and 3

be overruled.

Objection No. 4

Prior to the election and subsequent to the filing of the

t,o

Petition, the Petitioner made material misrepresenta-

tions to the Employer’s employees concerning the Em-

ployer’s profitability and ability to afford additional

wage increases, in order to influence their choice of 2

bargaining representative.

The Employer’s evidence indicates that on May 14, two

unit employees received a package of Petitioner’s literature,

including a cover memo entitled ‘‘Comp Care, Inc. dba

Crossroads Hospitals.’’ This packet is attached hereto and

designated Exhibit *‘D.’’ The contents of Exhibit *‘D’’ gen-

erally refer to the financial status and economic health of

Comprehensive Care Corporation. The cover memo, which

is dated May 11, identified Comprehensive Care, Inc. as

the corporate owner of the Employer. Other documents in

the packet referred to multiple subsidiaries of Comprehen-

sive Care and to the many facilities it operates throughout

the United States. The investigation also established that

Comprehensive Care Corporation is only a SO percent owner

of the Employer.

The Employer contends that Petitioner’s misrepresenta-

tion, on the day before the election, of Comprehensive Care

as the sole, rather than half, owner of the Employer pre-

cluded any effective reply and affected the outcome of the

election. The Employer does not contend that there is any

inaccuracy or misrepresentation by Petitioner with respect

to the rest of the materia] in Exhibit ‘‘D’’ concerning the

profitability of Comprehensive Care Corporation. The only

misrepresentation, therefore, involves the proportion in

which Comprehensive Care is the owner of Crossroads Hos-

pital. The Employer has failed to cite any case law in support

of its contention that such an inaccuracy would warrant

setting aside the election under the applicable standard of

Holiywood Ceramics, supra. | do not view the Petitioner’s

factual error to constitute a substantial departure from the

=, on

truth in the circumstances of the instant case. Petitioner

accurately identified Comprehensive Care as an owner of

the Employer and accurately described its economic well-

being. Further, I conclude that employees are in a position

to evaluate this type of campaign propaganda as it pertains

to the operations of the parent corporation and to those of

the Employer. Thus, it is not necessary for me to decide

whether the Employer had sufficient time for an effective

reply. Based on the foregoing, and the investigation as a

whole, I conclude that the distribution of Exhibit ‘‘D’’ does

not warrant setting aside the election, and I will recommend

that Objection No. 4 be overruled.

Conclusion

For the reasons set forth above and based upon the in-

vestigation as a whole, I have concluded that the Employer’s

Objections are without merit and that they fail to raise sub-

stantial and material issues such as would warrant setting

aside the election. Accordingly, I recommend that the Em-

ployer’s Objections be overruled and that a Certification of

Representative in favor of the Petitioner be issued.°

Signed at Los Angeles, California, this 23rd day of July

1981.

/s/_ Roger W. Goubeaux

Roger W. Goubeaux, Regional Director

National Labor Relations Board

Region 31

—ié

EXHIBIT A

A

GUARANTEE

TO

Since your employer seems to think

that you don’t need the GUARANTEED

Wages, Benefits, and Job Security —

found in a LOCAL 399 contract, see

if he'll sign this set of guarantees to you.

WE SIGNED OURS. ...

WILL HE SIGN HIS?

S|

AS THE ADMINISTRATOR OF CROSSROADS HOS-

PITAL, I BARBARA LANDIS, AGREE TO THE FOL-

LOWING GUARANTEES FOR MY EMPLOYEES IF

THEY VOTE AGAINST THE UNION:

1)

2)

3)

4)

I guarantee to “atch and give you the highest wage

increase that Local 399 has negotiated in any of

their Hospitals contracts this year.

I guarantee to make sick leave paid from the first

day of illness with a 100% cash-out on all unused

sick leave payable on the employee’s anniversary

date.

I guarantee to institute a fully employer-paid Health

Insurance plan.

I guarantee to revamp the grievance procedure so

that every employee is entitled to be judged by an

impartial arbitrator ending with a final and binding

decision, and extend the grievance procedure into

all areas of the job, including workload as well as

terminations.

WE SIGN OUR GUARANTEES — SEE IF THE COR-

PORATION WILL SIGN THEIRS

I SWEAR THAT THE ABOVE WILL BE THE POLICY

AT CROSSROADS HOSPITAL.

BARBARA LANDIS, Administrator

= =

AS DULY AUTHORIZED REPRESENTATIVES OF

HOSPITAL AND SERVICE EMPLOYEES UNION, LO-

CAL 399, WE GUARANTEE THE FOLLOWING:

)

2)

3)

4)

5)

6)

We guarantee that dues for Local 399 members

at — Crossroads Hospital will be $8.00 a month.

We guarantee that no current employee of Cross-

roads Hospital will be charged any Initiation Fee.

We guarantee that Local 399 will never order its

members at Crossroads Hospital out on strike!

We guarantee that no employee of Crossroads

Hospital will pay any dues until thirty (30) days

after they have voted by secret ballot to accept a

Union Contract containing the improved wages

and benefits they are happy with.

We guarantee that Local 399 will take legal action

against Crossroads Hospital on your behalf be-

cause of terminations withou’ just cause.

We guarantee to negotiate for every issue listed

on the following page, and more, if you vote for

the Union.

WE SWEAR UNDER PENALTY OF PERJURY THAT

THE ABOVE STATEMENTS ARE TRUE.

/s/_ James Zellers

JAMES ZELLERS, President

/s/_ Dick Davis

DICK DAVIS, Vice-President

/s/ Gloria Marigny

GLORIA MARIGNY, Secretary-Treasurer

/s/ Dorothy Osby

DOROTHY OSBY, Associate Director of

Organizing

GO WITH THE WINNERS CIRCLE!

Hospital Workers Union

WNWLAB ELECTION

Exhibit C

Jo & Star & Sheri

Regarding last Friday’s election: The reason for the chal-

lenge ballots is this. Your inclusion in the bargaining unit

was asked for by the Corporation. Our choice was this —

Either accept the additions or allow the election date to be

delayed to perhaps mid-Summer. The choices were not easy

— as the situation was deliberately created to undermine

our efforts at seeking redress for our legitimate grievance.

We had hoped that we could gain your support if we had

an opportunity to talk about the issues. Because I received

no response to my notes to you it seemed rather obvious

that you had no interest — thus the challenges. If the election

results could change by resolving the challenges then the

issue would have gone to an NLRB hearing because of the

margin of victory — I don’t believe there will be a hearing.

— That doesn’t really ma‘: sense — but??

If you still have no interest in the negotiation process or

any union involvement could you let me know directly. I'd

rather not make assumptions. We acknowledge your right

to your own opinion and our intentions are to oblige your

wishes but please let us know what they are.

It may be of interest to know what is happening as the

process of putting together issues — proposals continues

and your input is more than welcome — no matter what

Our intention was certainly not to create hard feelings.

If that is the case then | accept responsibility and offer an

apology. | look forward to working many more months with

all of you — Thanks

Bruce

ov a

APPENDIX B.

Decision and Certification of Representative of the Na-

tional Labor Relations Board, Case 31-RC-5029.

United States of America Before the National Labor Re-

lations Board.

Neuro Affiliates d/b/a Crossroads Hospital, Employer and

Hospital and Service Employees Union, Local 399, AFL-

CIO, Petitioner. Case 31-RC-5029.

DECISION AND CERTIFICATION

OF REPRESENTATIVE

Pursuant to authority granted it under Section 3(b) of the

National Labor Relations Act, as amended, a three-member

panel has considered objections to an election held May 15,

1981,' and the Regional Director’s Report recommending

disposition of same. The Board has reviewed the record in

light of the exceptions and briefs, and hereby adopts the

Regional Director’s findings and recommendations.’

CERTIFICATION OF REPRESENTATIVE

It is hereby certified that a majority of the valid ballots

have been cast for Petitioner and that, pursuant to Section

9(a) of the Act, the foregoing labor organization is the

exclusive representative of all the employees in the follow-

ing appropriate unit for the purposes of collective bargaining

with respect to rates of pay, wages, hours of employment,

‘The election was conducted to a Stipulation for Certification

be nay eye . The was 36 for, and 17 against, Petitioner,

ae eee en © Renee SE ar ee ee

‘In the Regional Director's recommendation that the Em-

Member Hunter find it unnecessary to on his reliance on

General Knit of California, Inc., 239 NLRB 619 (1978), since in their

ion the alleged misrepresentations do not warrant setting aside the

under any view of the applicable law.

—_20—

and other terms and conditions of employment:

All psychiatric aides, licensed vocational nurses, house-

keeping employees, dietary employees, Director of

Volunteers, group leaders, hospital clericals, ward

clerks, occupational therapy aides, recreational therapy

aides, and psychology interns employed by the Em-

ployer; excluding professional employees, confidential

employees, guards, and all other employees, and su-

pervisors as defined in the Act.

Dated, Washington, D.C., March 4, 1982.

John R. Van de Water, Chairman

John H. Fanning, Member

Robert P. Hunter, Member

NATIONAL LABOR RELATIONS BOARD

(SEAL)

a,

APPENDIX C.

Decision and Order of the National Labor Relations

Board, 263 NLRB No. 29.

United States of America Before the National Labor Re-

lations Board.

Neuro Affiliates d/b/a Crossroads Hospital and Local 399

Hospital and Service Employees Union, Service Employees

International Union, AFL-CIO. Case 31-CA-12030.

DECISION AND ORDER

Upon a charge filed on March 29, 1982, by Local 399

Hospital and Service Employees Union, Service Employees

International Union, AFL-CIO, herein called the Union, and

duly served on Neuro Affiliates d/b/a Crossroads Hospital,

herein called Respondent, the General Counsel of the Na-

tional Labor Relations Board, by the Regional Director for

Region 31, issued a complaint on April 23, 1982, against

Respondent, alleging that Respondent had engaged in and

was engaging in unfair labor practices affecting commerce

within the meaning of Section 8(a)(5) and (1) and Section

2(6) and (7) of the National Labor Relations Act, as amended.

Copies of the charge and complaint and notice of hearing

before an administrative law judge were duly served on the

parties to this proceeding.

With respect to the unfair labor practices, the complaint

alleges in substance that on March 4, 1982, following a

Board election in Case 31-RC-5029, the Union was duly

certified as the exclusive collective-bargaining representa-

tive of Respondent’s employees in the unit found appro-

priate;' and that, commencing on or about March 15, 1982,

‘Official notice is taken of the record in the proceeding,

Case 31-RC-5029, as the term ‘‘record”’ is in Secs. 102.68 and

prep Fhe ie = Series 8, as amended.

, Inc., 938 (1967), enfd. 388 F.2d

See LTV Ele 1968). Golden ‘eck 167 NLRB 151 (1 ela

enfd. 415 F. ads tence t 1 bh Co. v. Penello, 29 F.

573 (D.C.Va. 1967); Follen Corp., NLRB 378 (1967), enfd.

F.2d 91 (7th Cir. 1968); Sec. % Fan talis: eenmien

_—

and at all times thereafter, Respondent has refused, and

continues to date to refuse, to bargain collectively with the

Union as the exclusive bargaining representative, although

the Union has requested and is requesting it to do so. There-

after, Respondent filed its answer to the complaint admitting

in part, and denying in part, the allegations in the complaint,

and raising certain ‘‘affirmative defenses.’’

On May 19, 1982, counsel for the General Counsel filed

directly with the Board a Motion for Summary Judgment.

Subsequently, on May 26, 1982, the Board issued an order

transferring the proceeding to the Board and a Notice to

Show Cause why the General Counsel’s Motion for Sum-

mary Judgment should not be granted. Respondent there-

after filed a response to the Notice to Show Cause.

Pursuant to the provisions of Section 3(b) of the National

Labor Relations Act, as amended, the National Labor Re-

lations Board has delegated its authority in this proceeding

to a three-member panel.

Upon the entire record in this proceeding, the Board makes

the following:

Ruling on the Motion for Summary Judgment

In its answer to the complaint, Respondent denies the

request and refusal to bargain. Furthermore, in its answer

and its response to the Notice to Show Cause, Respondent

asserts that the Union’s certification was improper on the

basis of Respondent's objections to the election in the un-

violated Board rules by refusing Respondent's request for

a hearing on its objections and by failing to send the entire

record to the Board for review, and that the Board’s failure

to grant a hearing on its objections and review all of the

—- =

evidence deprived it of due process.’

Review of the record herein, including the record in Case

31-RC-5029, reveals that an election conducted pursuant to

a Stipulation for Certification Upon Consent Election on

May 15, 1981, resulted in a vote of 36 for, and 17 against

the Union, with 13 challenged ballots and | void ballot.

Thereafter, Respondent filed timely objections to conduct

affecting the results of the election, alleging, in substance,

that (1) the Union attempted to entrap the Employer into

committing serious unfair labor practices by challenging it

to make written promises of benefits during the critical

period; (2) the Union engaged in a scheme of mass chal-

lenges of only antiunion employees to discriminate against

antiunion employees; (3) the Board agent conducting the

election fostered the impression of bias by allowing the

Union’s challenges while precluding the Employer’s elec-

tion observer from making counter-challenges of prounion

employees; and (4) the Union made material misrepresen-

tations concerning the ownership and profitability of the

Employer.

After investigation, the Regional Director issued his Re-

port on Objections on July 23, 1981, in which he recom-

mended that Respondent’s objections be overruled in their

entirety and that the Union be certified. Thereafter, Respon-

dent filed timely exceptions to the Regional Director’s re-

port, in which it contended, inter alia, that the record should

include all evidence compiled by or submitted to the Re-

gional Director during the course of his investigation and

that a hearing was warranted. On March 4, 1982, the Board,

Respondent has requested oral argument map

denied as the record, te General Conse! s Motion for

=,

having considered the Regional Director's report, adopted

the findings, conclusions, and recommendations of the Re-

gional Director and certified the Union as the exclusive

bargaining representative of the employees in the unit stip-

ulated to be appropriate. It thus appears that Respondent is

attempting in this proceeding to relitigate issues fully liti-

gated and finally determined in the representation proceeding.

It is well settled that in the absence of newly discovered

or previously unavailable evidence or special circumstances

a respondent in a proceeding alleging a violation of Section

8(a)(5) is not entitled to relitigate issues which were or could

have been litigated in a prior representation proceeding.’

All issues raised by Respondent in this proceeding were

or could have been litigated in the prior representation pro-

ceeding, and Respondent does not offer to adduce at a hear-

a

In this proceeding, Respondent contends that it is entitled

to a hearing on its objections to the election. Prior to adopt-

ing the findings, conclusions, and recommendations of the

Regional Director’s Report on Objections, the Board con-

sidered the report, Respondent's exceptions thereto, and the

entire record in that case. By its adoption of the report

recommending that Respondent’s objections be overruled,

the Board necessarily found that the objections raised no

substantial or material issues warranting a hearing.* Further,

it is well established that the parties do not have an absolute

right to a hearing on objections to an election. It is only

when the moving party presents a prima facie showing of

substantial and material issues which would warrant setting

aside the election that it is entitled to an evidentiary hearing.

It is clear that, absent arbitrary action, this qualified right

to a hearing satisfies the constitutional requirements of due

process.® Accordingly, we grant the Motion for Summary

Judgment.

the Union's demand to commence ining. Bey Aeon

dispute the validity of these letters. | ys menor

of fact warranting a hearing.

*Madisonville Concrete Co., A Division of Corum & Edwards, Inc.,

220 NLRB 668 (1975), enforcement denied 552 F.2d 168 (6th Cir.

1977); Evansville Auto Parts, Inc., 217 NLRB 660 (1975).

*GTE Lenkurt, ey tome 218 NLRB 929 (1975); 3

Ski Area, a California C. . and Heavenly Yoav ean

ship, 215 NLRB 734 (1974); Amalgamated C.

ica (Wi Manufacturing Company, Inc.| v. N.L.R.B., 4

818, 828 (D.C. Cir. 1970).

=

On the basis of the entire record, the Board makes the

following:

Findings of Fact

I. The Business of Respondent

Neuro Affiliates d/b/a Crossroads Hospital is, and has

been at all times material herein, a joint venture duly or-

ganized under and existing by virtue of the laws of the State

of California, with an office and place of business located

in Van Nuys, California, where it is engaged as a health

Care institution in the operation of an acute psychiatric hos-

pital. Respondent, in the course and conduct of its business

operations, annually purchases and receives goods or ser-

vices valued in excess of $5,000 from sellers or suppliers

located within the State of California, which sellers and

suppliers receive such goods in substantially the same form

directly from outside the State of California. Respondent,

in the course and conduct of its business operations, annually

derives gross revenues in excess of $250,000.

We find, on the basis of the foregoing, that Respondent

is, and has been at all times material herein, an employer

engaged in commerce within the meaning of Section 2(6)

and (7) of the Act, and that it will effectuate the policies

of the Act to assert jurisdiction herein.

II. The Labor Organization Involved

Local 399 Hospital and Service Employees Union, Ser-

vice Employees International Union, AFL-CIO, is a labor

organization within the meaning of Section 2(5) of the Act.

Ill. The Unfair Labor Practices

A. The Representation Proceeding

1. The unit

The following employees of Respondent constitute a unit

oo

All psychiatric aides, licensed vocational nurses,

housekeeping employees, dietary employees, Director

of Volunteers, group leaders, hospital clericals, ward

clerks, occupational therapy aides, recreational therapy

aides, and psychology interns employed by the Em-

ployer; excluding professional employees, confidential

employees, guards, all other employees, and super-

visors as defined in the Act.

2. The certification

On May 15, 1981, a majority of the employees of Respon-

dent in said unit, in a secret-ballot election conducted under

the supervision of the Regional Director for Region 31,

designated the Union as their representative for the purpose

of collective bargaining with Respondent.

The Union was certified as the collective-bargaining rep-

resentative of the employees in said unit on March 4, 1982,

and the Union continues to be such exclusive representative

within the meaning of Section 9(a) of the Act.

B. The Request To Bargain and Respondent's Refusal

Commencing on or about March 10, 1982, and at all

times thereafter, the Union has requested Respondent to

bargain collectively with it as the exclusive collective-

bargaining representative of all the employees in the above-

described unit. Commencing on or about March 15, 1982,

and continuing at all times thereafter to date, Respondent

has refused, and continues to refuse, to recognize and bar-

gain with the Union as the exclusive representative for col-

lective bargaining of all employees in said unit.

Accordingly, we find that Respondent has, since on or

about March 15, 1982, and at all times thereafter, refused

to bargain collectively with the Union as the exclusive rep-

resentative of the employees in the appropriate unit, and

Ben

that, by such refusal, Respondent has engaged in and is

engaging in unfair labor practices within the meaning of

Section 8(a)(5) and (1) of the Act.

IV. The Effect of the Unfair Labor Practices Upon

Commerce

The activities of Respondent set forth in section II], above,

occurring in connection with its operations described in

section I, above, have a close, intimate, and substantial

relationship to trade, traffic, and commercs among the sev-

eral States and tend to lead to labor disputes burdening and

obstructing commerce and the free flow of commerce.

V. The Remedy

Having found that Respondent has engaged in and is

3lgaging in unfair labor practices within the meaning of

Section 8(a)(5) and (1) of the Act, we shall order that it

cease and desist therefrom, and, upon request, bargain col-

lectively with the Union as the exclusive representative of

all employees in the appropriate unit and, if an understand-

ing is reached, embody such understanding in a signed

agreement.

In order to insure that the employees in the appropriate

unit will be accorded the services of their selected bargaining

agent for the period provided by law, we shall construe the

initial period of certification as beginning on the date

Respondent to bargain in good faith with the

Union as the recognized bargaining representative in the

appropriate unit. See Mar-Jac Poultry Company, Inc., 136

NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel,

140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (Sth Cir.

1964), cert. denied 379 U.S. 817; Burnett Construction

Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d

—

57 (10th Cir. 1965).

The Board, upon the basis of the foregoing facts and the

entire record, makes the following:

Conclusions of Law

1. Neuro Affiliates d/b/a Crossroads Hospital is an em-

ployer engaged in commerce within the meaning of Section

2(6) and (7) of the Act.

2. Local 399 Hospital and Service Employees Union,

Service Employees International Union, AFL-CIO, is a la-

bor organization within the meaning of Section 2(5) of the

Act.

3. All psychiatric aides, licensed vocational nurses,

housekeeping employees, dietary employees, Director of

Volunteers, group leaders, hospital clericals, ward clerks,

occupational therapy aides, recreational therapy aides, and

psychology interns employed by the Employer; excluding

professional employees, confidential employees, guards, all

other employees, and supervisors as defined in the Act,

constitute a unit appropriate for the purposes of collective

bargaining within the meaning of Section 9(b) of the Act.

4. Since March 4, 1982, the above-named labor orga-

nization has been and now is the certified and exclusive

representative of all employees in the aforesaid appropriate

unit for the purpose of collective bargaining within the

meaning of Section 9a) of the Act.

5. By refusing on or about March 15, 1982, and at all

times thereafter, to bargain collectively with the above-

named labor organization as the exclusive bargaining rep-

resentative of all the employees of Respondent in the ap-

propriate unit, Respondent has engaged in and is engaging

in unfair labor practices within the meaning of Section 8(a)(5)

of the Act.

a

6. By the aforesaid refusal to bargain, Respondent has

interfered with, restrained, and coerced, and is interfering

with, restraining, and coercing, employees in the exercise

of the rights guaranteed them in Section 7 of the Act, and

thereby has engaged in and is engaging in unfair labor prac-

tices within the meaning of Section 8(a)(1) of the Act.

7. The aforesaid unfair labor practices are unfair labor

practices affecting commerce within the meaning of Section

2(6) and (7) of the Act.

aoibtes

ORDER

Pursuant to Section 10(c) of the National Labor Relations

Act, as amended, the National Labor Relations Board here-

by orders that the Respondent, Neuro Affiliates d/b/a Cross-

roads Hospital, Van Nuys, California, its officers, agents,

successors, and assigns, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively concerning rates of

pay, wages, hours, and other terms and conditions of em-

ployment with Local 399 Hospital and Service Employees

Union, Service Employees International Union, AFL-CIO,

as the exclusive bargaining representative of its employees

in the following appropriate unit:

All psychiatric aides, licensed vocational nurses,

housekeeping employees, dietary employees, Director

of Volunteers, group leaders, hospital clericals, ward

clerks, occupational therapy aides, recreational therapy

aides, and psychology interns employed by the Em-

ployer; excluding professional employees, confidential

employees, guards, all other employees, and super-

visors as defined in the Act.

(b) In any like or related manner interfering with, re-

straining, or coercing employees in the exercise of the rights

guaranteed them in Section 7 of the Act.

2. Take the following affirmative action which the Board

finds will effectuate the policies of the Act:

(a) Upon request, bargain with the above-named labor

organization as the exclusive representative of all employees

in the aforesaid appropriate ait with respect to rates of pay,

wages, hours, and other terms and conditions of employ-

ment and, if an understanding is reached, embody such

understanding in a signed agreement.

a

(b) Post at its Van Nuys, California, facility copies of

the attached notice marked ‘‘Appendix.’’’ Copies of said

notice, on forms provided by the Regional Director for

Region 31, after being duly signed by Respondent’s rep-

resentative, shall be posted by Respondent immediately upon

receipt thereof, and be maintained by it for 60 consecutive

days thereafter, in conspicuous places, including all places

where notices to employees are customarily posted. Rea-

sonable steps shall be taken by Respondent to insure that

said notices are not altered, defaced, or covered by any

other material.

(c) Notify the Regional Director for Region 31, in writ-

ing, within 20 days from the date of this Order, what steps

have been taken to comply herewith.

Dated, Washington, D.C. August 10, 1982

John H. Fanning, Member

Howard Jenkins, Jr., Member

Don A. Zimmerman, Member

NATIONAL LABOR RELATIONS BOARD

(SEAL)

aS ee

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the National Labor Relations Board

An Agency of the United States Government

WE WILL NOT refuse to bargain collectively concerning

rates of pay, wages, hours, and other terms and conditions

of employment with Local 399 Hospital and Service Em-

ployees Union, Service Employees International Union,

AFL-CIO, as the exclusive representative of the employees

in the bargaining unit described below.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce our employees in the exercise of

the rights guaranteed them by Section 7 of the Act.

WE WILL, upon request, bargain with the above-named

Union, as the exclusive representative of all employees in

the bargaining unit described below, with respect to rates

of pay, wages, hours, and other terms and conditions of

employment and, if an understanding is reached, embody

such understanding in a signed agreement. The bargaining

unit is:

All psychiatric aides, licensed vocational nurses,

housekeeping employees, dietary employees, Director

of Volunteers, group leaders, hospital clericals, ward

clerks, occupational therapy aides, recreational therapy

aides, and psychology interns employed by the Em-

ployer; excluding professional employees, confidential

employees, guards, all other employees, and super-

visors as defined in the Act.

NEURO AFFILIATES d/b/a CROSSROADS

HOSPITAL 3

(Employer)

Dated By

(Representative) (Title)

, " V4 nS

es - 7 - m X Oe, fe See hy al 4 ac

. bh any" , ae, AS & .

Af ee ee fe] eS ae i ple Pal. Se ae “Agee iss

ii

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions concerning

this notice of compliance with its provisions may be directed

to the Board’s Office, Federal Building, Room 12100, 11000

Wilshire Boulevard, Los Angeles, California 90024, Tele-

phone 213-824-7357.

7

APPENDIX D.

Memorandum Opinion of the United States Court of

Appeals for the Ninth Circuit, Case Nos. 82-7507,

82-7631.

United States Court of Appeals for the Ninth Circuit.

Neuro Affiliates d/b/a Crossroads Hospital, Petitioner/

Cross-Respondent, v. National Labor Relations Board,

Respondent/Cross-Petitioner. Nos. 82-7507, 82-7631.

Filed: Nov. 4, 1983.

Appeal from an Order of the National Labor Relations

Board.

Argued and Submitted June 7, 1983.

Before: BROWNING, CHOY and FERGUSON, Cir-

cuit Judges* *

Neuro Affiliates appeals a National Labor Relations Board

(Board) bargaining order and the Board cross-petitions for

enforcement. Because we find that the Board did not abuse

its discretion in certifying Hospital and Service Employees

Union Local 399 (the union) as bargaining agent for Neuro

Affiliates’ employees, we enforce the Board’s order.

Neuro Affiliates argues that it need not bargain with the

union as the Board abused its discretion in certifying the

election, in not holding a hearing on Neuro Affiliates’ ob-

*The has concluded that the issues presented by this do

not the standards set by Rule 2! of the Rules of for

written , it is ordered that

Scien opinion. Accordingly disposition

ib

terial factual issues which, if resolved in its favor, would

warrant setting aside the election. E.g., Heavenly Valley

Ski Area v. NLRB, 552 F.2d 269, 271 (9th Cir. 1977). For

a party to be entitled to a hearing, the party’s ‘‘exceptions

must state the specific findings that are controverted, and

they must be accompanied by offers of proof in support of

findings to the contrary.”’ NLRB v. Kenny, 488 F.2d 774,

775 (9th Cir. 1973). ‘“‘Mere disagreement’’ with the rea-

soning of or inferences drawn by the Regional Director does

not raise a ‘‘substantial and material factual issue.’ Jd. at

775-76 (quoting NLRB v. Tennessee Packers, Inc., 379 F.2d

172, 178 (6th Cir.), cert. denied, 389 U.S. 958 (1967)).

Election Challenges

Neuro Affiliates objected to the election on the grounds

that (1) the union distributed false and misleading infor-

mation two days before the election; (2) the election chal-

lenges filed by the union disrupted the election; and (3) the

Board agent supervising the election appeared to favor the

union. The Board correctly held that no hearing was required

as Neuro Affiliates failed to raise a factual issue with respect

to any of these objections and that the election was valid.

In its challenge to election results based on pre-election

conduct, Neuro Affiliates must show that the employees

were so influenced by the questioned conduct that it was

impossible for them to freely choose a representative. NLRB

v. Advanced Systems, Inc., 681 F.2d 570, 575 (9th Cir.

1982). Neuro Affiliates offered no evidence to the Regional

Director or to the Board indicating that employees were or

felt coerced in voting in the election. As was the case in

Spring City Knitting Co. v. NLRB, 647 F.2d 1011 (9th Cir.

1981), “‘{njone of the activities alleged was so inherently

intimidating that we are free to presume coercive effect. . . .

{The record] is devoid of any indication of intimidation.”’

a

Id. at 1019.

The information sent out by the union prior to the election

does not present grounds for setting aside the election. Neuro

Affiliates introduced no evidence controverting the Regional

Director’s conclusion that the flyer did not constitute a ma-

terial misrepresentation or significantly impair the election

process. Heavenly Valley Ski Area, 552 F.2d at 272. The

record supports his conclusion that the sequence of events

leading to the mailing and the language used in the flyer

leave the proper weight to attach to the flyer to the good

sense of the voters.

Neuro Affiliates introduced no evidence to sustain its

charge that the Board agent created the belief among em-

ployees that the Board wanted the union to win. The agent’s

behavior was consonant with Board policies in that she

accepted union and employer challenges without trying to

judge the validity of the challenges on the spot or making

special arrangements to frustrate or facilitate challenges.

The alleged conduct of the Board agent could not have

destroyed confidence in the Board’s election process or rea-

sonably be interpreted as impugning the Board’s election

standards. NLRB v. Eskimo Radiator Mfg Co., 688 F.2d

1315, 1319 (9th Cir. 1982).

Board Review of Incomplete Record

The Board’s role in reviewing exceptions to the Regional

Director’s report is not to resolve factual disputes but ‘‘to

determine whether there is a substantial and material dispute

between the facts presented in the report and those presented

in the exceptions.’” NLRB v. Advanced Systems, Inc., 681

F.2d at 574. If the exceptions, construed most favorably to

the petitioner, fail to provide any factual basis for over-

turning the report, the Board's failure to review the entire

record will not justify a remand for further proceedings.

_

NLRB v. Eskimo Radiator Mfg. Co., 688 F.2d at 1318;

NLRB v. Belcor, Inc., 652 F.2d 856, 858-59 (9th Cir. 1981).

There were only two statements referred to in the Regional

Director’s report which Neuro Affiliates did not produce,

and neither could have supported Neuro Affiliates allega-

tions or raised a question of fact concerning the propriety

of the election. First, the report referred to statements by

union officials that they mailed the preelection flyers to

employees on May 8. The date of the distribution is not

relevant in this case as the Board found that the flyer itself

did not constitute a material misrepresentation. Moreover,

the union never disputed Neuro Affiliates’ position regard-

ing the timing of the flyer. The other possible employee-

union statement allegedly not forwarded to the Board con-

cerned the allegation that the union election challenges were

improperly motivated. Even accepting that the statement

was in the record, provided by the union, relied upon by

the Director, and not forwarded to the Board, it could not

have affected the outcome of this case. Although Neuro

Affiliates alleged improper union motivation in challenging

certain ballots, it offered no evidence on the crucial issue

whether the union challenges affected the free choice of the

voting employees. See NLRB v. Belcor, Inc., 652 F.2d at

861. Any possible failure by the Director to forward these

statements to the Board was thus harmless error. /d.

The Board’s order will be ENFORCED.

—_39—

APPENDIX E.

Judgment of the United States Court of Appeals for the

Ninth Circuit, Case Nos. 82-7507, 82-7631.

United States Court of Appeals For the Ninth Circuit.

Neuro Affiliates d/b/a Crossroads Hospital, Petitioner/

Cross-Respondent, vs National Labor Relations Board,

Respondent/Cross-Petitioner, NLRB# 31-CA-12030, No.

82-7507 & 82-7631.

Upon Petition to Review and Cross-Application for En-

forcement of an Order of the National Labor Relations Board.

This Cause came on to be heard on the Transcript of the

Record from the National Labor Relations Board on June

7, 1983 and was duly submitted.

On Consideration Whereof, it is now here ordered and

adjudged by this Court, that the Order of the said National

Labor Relations Board in this Cause be, and hereby is

ENFORCED.

Filed and entered: November 4, 1983.

—

APPENDIX F.

Statutory Provisions Involved.

1. Section 8(a)(1) of the National Labor Relations Act,

as amended, 29 U.S.C. § 158(a)(1), provides:

**(a) It shall be an unfair labor practice for an employer

— (1) to interfere with, restrain, or coerce, employecs

in the exercise of the rights guaranteed in section 7;’’

2. Section 8(a)(5) of the National Labor Relations Act,

as amended, 29 U.S.C. § 158(a)(5), provides:

**(a) It shall be an unfair labor practice for an employer

— (5) to refuse to bargain collectively with the rep-

resentatives of his employees, subject to the provisions

of section 9(a).”’

3. Section 9(c) of the National Labor Relations Act, as

amended, 29 U.S.C. § 15%c), provides:

**(1) Wherever a petition shall have been filed, in

accordance with such regulations as may be prescribed

by the Board —

(A) by an employee or group of employees or any

individual or labor organization acting in their behalf

alleging that a substantial number of employees (i)

wish to be represented for collective bargaining and

that their employer declines to recognize their rep-

resentative as the representative defined in section

%a), or (ii) assert that the individual or labor or-

ganization, which has been certified or is being rec-

ognized by thei employer as the bargaining repre-

sentative, is ao longer a sepsssentetive es defined in

section 9a); or

(B) by an employer, alleging that one or more

individuals or labor organizations have presented to

him a claim to be recognized as the representative

defined in section %a);

ary ae

the Board shall investigate such petition and if it has

reasonable cause to believe that a question of repre-

sentation affecting commerce exists shall provide for

an appropriate hearing upon due notice. Such hearing

may be conducted by an officer or employee of the

regional office, who shall not make any recommen-

dations with respect thereto. If the Board finds upon

the record of such hearing that such a question of rep-

resentation exists, it shall direct an election by secret

ballot and shall certify the results thereof.

(2) In determining whether or not a question of rep-

resentation affecting commerce exists, the same reg-

ulations and rules of decision shall apply irrespective

of the identity of the person filing the petition or the

kind of relief sought and in no case shall the Board

deny a labor organization a place on the ballot by reason

of an order with respect to such labor organization or

its predecessor not issued in conformity with section

10(c).

(3) No election shall be directed in any bargaining

unit or any subdivision within which, in the preceding

twelve-month period, a valid election shall have been

held. Employees engaged in an economic strike who

are not entitled to reinstatement shall be eligible to vote

under such regulations as the Board shall find are con-

sistent with the purposes and provisions of this Act in

any election conducted within twelve months after the

commencement of the strike. In any election where

none of the choices on the ballot receives a majority,

a run-off shall be conducted, the ballot providing for

a selection between the two choices receiving the larg-

est and second largest number of valid votes cast in

the election.

(4) Nothing in this section. shall be construed to

prohibit the waiving of hearings by stipulation for the

purpose of a consent election in conformity with reg-

4).

ulations and rules of decision of the Board.

(S) In determining whether a unit is appropriate for

the purpose specified in subsection (b) the extent to

which the employees have organized shall not be

controlling.

28 U.S.C. § 2112(b) provides:

(b) The record to be filed in the court of appeals in

such a proceeding shall consist of the order sought to

be reviewed or enforced, the findings or report upon

which it is based, and the pleadings, evidence, and

proceedings before the agency, board, commission, or

officer concerned, or such portions thereof (1) as the

rules prescribed under the authority of section 2072 of

this title may require to be included therein, or (2) as

the agency, board, commission, or officer concerned,

the petitioner for review or respondent in enforcement,

as the case may be, and any intervenor in the court

proceeding by written stipulation filed with the agency,

board, commission, or officer concerned or in the court

in any such proceeding may consistently with the rules

prescribed under the authority of section 2072 of this

title designate to be included therein, or (3) as the court

upon motion of a party or, after a prehearing confer-

ence, upon its own motion may by order in any such

proceeding designate to be included therein. Such a

stipulation or order may provide in an appropriate case

that no record need be filed in the court of appeals. If,

however, the correctness of a finding of fact by the

agency, board, commission, or officer is in question

all of the evidence before the agency, board, commis-

sion, or officer shall be included in the record except

such as the agency, bc. ard, commission, or officer con-

cerned, the petitioner for review or respondent in en-

forcement, as the case may be, and any intervenor in

the court Jey by written stipulation filed with

the agency, board, commission, or officer concerned

_

or in the court agree to omit as wholly immaterial to

the questioned finding. If there is omitted from the

record any portion of the proceedings before the agency,

board, commission, or officer which the court subse-

quently determines to be proper for it to consider to

enable it to review or enforce the order in question the

court may direct that such additional portion of the

proceedings be filed as a supplement to the record. The

agency, board, commission, or officer concerned may,

at its option and without regard to the foregoing pro-

visions of this subsection, and if so requested by the

petitioner for review or respondent in enforcement shall,

file in the court the entire record of the proceedings

before it without abbreviation.