# Petition — Neuro Affiliates v. National Labor Relations Board

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1204

## Text

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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:
i
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1184%3A1. Public record. Not legal advice.