UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD REGION 20

Seton Medical Center/Seton Coastside, Employer and National Union of Healthcare Workers (NUHW) Petitioner and SEIU United Healthcare Workers-West (SEIU-UHW) Intervenor Case 20-RC-073334

HEARING OFFICER'S REPORT AND RECOMMENDATIONS ON OBJECTIONS Following a petition filed on January 27, 2012,1 by National Union of Healthcare Workers (Petitioner or NUHW) seeking representation of the Employer's employees employed at its Daly City, California, and Moss Beach, California, facilities, and pursuant to a Stipulated Election Agreement that the Regional Director approved on March 21, an election by secret ballot was conducted on March 21 among the employees in the following appropriate collectivebargaining unit:

All full-time and regular part-time and per them employees, and limited parttime employees employed by the Employer at its facilities located at 1900 Sullivan Avenue, Daly City, California (Seton Medical Center) and 600 Marine
All dates are in 2012 unless otherwise indicated.

Blvd., Moss Beach, California (Seton Coastside) in the following classifications:

Bed Control Coord, Bed Control Lead, Central Serv Tech 1,Central Serv Tech 11, Lead Central Service Tech, Centralized Scheduler, Console Operator, Cyto Tech SR, Env Svc Tecfh, Env Svc Tech Lead, Hospital Attendant, Linen Service Worker, Nursing Asst 1, Pre-Admissions Registrar, Pulmonary Functions Tech, Radiology Tech Asst, Respiratory Care Aide, Secretary, SNF Staff RN (Coastside), Lead SNF Staff RN (Coastside), Unit Coordinator, Unit Coordinator Sr, Vascular Tech II, Waiter/Waitress, Admitting Coord, Anesthesia Tech, Anesthesia Tech Senior, Cardiology Tech, Cardiopulmonary Rehab Aide, Cath Lab Service Tech, Cert Nursing Assistant, Client Service Rep, Clinical Lab Tech, Cook, Cyto. Tech, Data Entry Clerk, Dietary Clerk, Dietary Clerk 11, Driver, Echo Tech I, Lead Echo Technician II, ER Tech, File Clerk, FilmFile Clerk Lead, Food Service Aide, Lead Food Services, Histo Tech, SR Histo Tech NB, Instrument Tech, Inventory Clerk, Lab Asst I/Clerk, Lab Asst II/Phlebotomist, Lab Asst III/Phlebotomist + Process, Library Assistant, LVN, LVN Senior, Mail Clerk, Med Rec Clk 11, Med Rec Clerk 111, Med Transcriber, Lead Med Transcriber, Medical Assistant, Monitor Tech, MRI Tech, Lead MRI Tech/CT Tech, Neurology Tech, Nuc Med Asst, Nuc Med Tech, Admitting Officer Lead, Central Serv Aide Tech 1, Central Serv Aide, Tech 11, Central Supply Clerk, Cook Lead, Department Secretary, Dietary Tech, Histo Tech Lead, Host/Hostess, Housekeeping Aide, Housekeeping Aide Lead, Linen Room Worker, Med Rec Clk 1, Med Rec Clk II/Med Rec Clinic Clerk, Nuc Med Tech Lead, Nursing Asst/Hosp Attendant/Pt Care Attd, OB Tech, PBX Operator, Radiation Therapist Lead, Receptionist/Information Clerk/Intermed Clerk, Registrar/Admitting Officer, RN Seton Coastside, Ultrasound Technician, Ultrasound Tech III Lead, Echo Tech 11 (RDMS), Office Assistant, Office Coord, Office Coordinator-VVNHS, Office Coord Senior, Office Coordinator Senior-WNHS, OR Attendant, OR Tech 1, OR Tech 11, OR Tech, Senior, Pathology Asst, Patient Coordinator NB, Pharmacy Tech, Pharmacy Tech, Sr, PT Aide, PT Asst,

Rad Tech 1, Rad Tech 11, Rad Tech III, Rad Tech III Lead, Rad Tech IV, Rad Tech/CT Tech, Radiation Therapist, Radiology Aide, Radiology Asst, RCP I (Unreg), RCP 11 (Reg), RCP III, Receptionist, Registrar, R.O.I. Tech, Restorative Aide (CNA), Restorative Aide (not CNA), Simulation Therapist, Staffing Clerk, Storekeeper, Transporter, Ultrasound Tech 1,Ultrasound Tech 11, Ultrasound Tech III; excluding all other employees, office clerical employees, professional employees, confidential employees, guards and supervisors as defined in the Act. Upon conclusion of the ballot count on March 2 1, each of the parties received a copy of the official Tally of Ballots showing that the 24 challenged ballots were sufficient in number to affect the outcome of the election. On May 29, following an investigation, the Regional Director issued a Report and Recommendations Regarding Challenged Ballots. No exceptions being timely filed to the May 29 Report, the Board issued a Decision and Direction dated June 27 directing that certain of the challenged ballots be opened. Upon conclusion of the ballot count on July 9, each of the parties received a copy of the official Revised Tally of Ballots showing the following "Final Tally" results:

Approximate number of eligible voters (Original Tally) ........ . . .726 Num ber of void ballots ..........................................0 Number of votes cast for National Union of Healthcare Workers (NU H W ) ......................... ......................... 271 Number of Challenged Ballots Counted ...........................21 Number of votes cast for SEIU United Healthcare Workers-West (SEIU -U H W) ...................... ......................... 301 Number of votes cast against participating labor organizations . . . . . .... 19 Number of valid votes counted .................................. 591 Number of undetermined challenged ballots ..........................0 Number of Valid votes counted plus challenged ballot .............. 591 Number of Sustained challenges (voters ineligible) ..................... 3

Intervenor SEIU United Healthcare Workers - West, herein SEIU or Intervenor, was thus selected by a majority of voters as the employees' collective-bargaining representative. On March 18, however, Petitioner had timely filed 31 Objections to Conduct ofElection. On August 24, the Acting Regional Director issued a Report on Objections and Notice of Hearing concluding that Objection Nos. 9, 10, 12, 14, 15, 18, 20 and 28-31 raised no substantial and material issues of fact that warranted a hearing and recommended that the Board overrule those Objections. The Acting Regional Director concluded that the remaining Objections raised substantial and material issues of fact that could best be resolved through a hearing. These Objections (1-8, 11, 13, 16, 17, 19, and 21-27) are stated and summarized in the aforesaid Report on Objections and Notice of Hearing. The Acting Regional Director directed the Hearing Officer to prepare and cause to be served upon the parties a report containing resolution of credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of the latter Objections only.

On the entire record, including my observation of the demeanor of witnesses, and after considering the briefs filed by Petitioner, Intervenor, and Employer, I find the following events occurred in the circumstances described during the critical period.

FINDINGS OF FACT AND DISCUSSION A. Legal Overview The critical period during which conduct allegedly affecting the results of a representation election must be examined commences with the filing of the representation petition and extends through the election. Ideal Electric Mfg. Co., 134 NLRB 1275 (1961). Here, the critical period is January 27 through March 2 1. The Board does not lightly set aside representation elections. Quest International,338 NLRB 856 (2003); Safeway, Inc., 338 NLRB 525 (2002). The burden of proving a Boardsupervised election should be set aside is a "heavy one." KuX Mfg. Co. v. NLRBI 890 F.2d 804, 808(6 1h Cir. 1989) (quoting Harlan #4 Coal Co. v. NLRB, 490 F.2d 117, 120 (6 1h Cir.), cert denied 416 U.S. 986 (1974). The objecting party must show that the objectionable conduct affected employees in the voting unit. Avante at Boca Raton, Inc., 323 NLRB 555, 560. The test, applied objectively, is whether election conduct has the tendency to interfere with the

employees' freedom of choice. Taylor Wharton Division, 336 NLRB 157, 158 (2001). Petitioner must show the conduct in question had a reasonable tendency to interfere with employees' free and uncoerced choice in the election to such an extent that it materially affected the results of the election. Madison Square Garden CT, LLC, 338 NLRB 856, 857 (2003).

B. Petitioner's Objections C. Objections 1-8, 11, 13, 16, 17, 19, and 21-27 are the subject of this proceeding. They can be considered in the following six groupings. Where objections overlap or relate to the same course of events, they are considered together.

1.

Objections 1-6

(1) The Intervenor union SERJ UHW-W ("SErU" or "Intervenor"), by its agents, engaged in unlawful surveillance and interrogation of employees, which restrained and coerced them in the exercise of their Section 7 rights and destroyed laboratory conditions necessary for a free election.

(2) The Intervenor, by its agents, engaged in unlawful surveillance of voters at or near the election area, including but not limited to surveilling eligible voters as they entered the polling site during times when polls were open, interfering with the laboratory conditions necessary for the conduct of a fair election. (3) The Intervenor, by its agents, engaged in unlawful interrogation of voters at or near the election area, including but not limited to interrogating eligible voters as they entered the polling site during times when polls were open, interfering with the laboratory conditions necessary for the conduct of a fair election. (4) The Intervenor, by its agents, engaged in unlawful conduct by improperly talking to eligible voters as they waited in line to vote in this election.

(5) The Intervenor, by its agents, engaged in electioneering at or near the polling place on election days and during periods when the polls were open. (6) The Intervenor, by its agents, questioned and polled employees regarding which union they supported, and/or unlawftilly maintained lists of who voted in the election, and communicated with eligible voters during the voting process destroying the laboratory conditions necessary for the conduct of a fair election.

2.

Objections 7 and 8

(7) The Intervenor, by its agents, created an atmosphere of fear and coercion interfering with the laboratory conditions necessary for the conduct of a fair election. (8) The Intervenor, by its agents, interfered with the free choice of employees by assaulting and battering a N-LJHW employee supporter and/or condoning the assault, and by threatening another NUHW employee supporter with physical harm. 3.

Objection I I

(11) The Intervenor, by its agents, unlawfully provided gifts to employees as inducements to vote for SEIU.

4.

Objection 13

(13) The Intervenor, by its agents, threatened employees with reprisal and/or loss of wages and/or benefits if NUHW won this election, and promised employees benefits if SERJ won the election. 5. Objections 16 and 17 (16) The employer, by its agents, unlawfully contributed financial and/or other support to SEW.

(17) The employer, by its agents, unlawfully paid benefits and/or other compensation to SERJ representatives, including but not limited to employees on "lost time," for time these union representatives spent campaigning against NUHW and/or in support of SEM.

6.

Objections 19 and 21-24

(19) The employer, by its agents, campaigned for the SEITJ, and through words and conduct expressed support of SEIU and/or expressed disapproval of NUHW.

(21) The employer, by its agents, imposed discriminatory access, solicitation, and distribution policies designed to coerce employees in the exercise of their protected Section 7 rights, encourage voting for SEIU, and discourage voting for NUHW, and which interfered with the conduct of a fair election.

(22) The employer, by its agents, implemented its access, distribution, and solicitation policies in a manner which coerced employees in the exercise of their protected Section 7 rights, encouraged voting for SEIU, discouraged voting for NUHW, and which interfered with the conduct of a fair election.

(23) The employer, by its agents, provided non-employee supporters of SEW greater access to conduct electioneering activities in the employer's facilities than the access granted to NUHW non-employee supporters to conduct electioneering activities in the employer's facilities. (24) The employer, by its agents, provided employee supporters of SElU greater access to conduct electioneering activities in the employer's facilities than the access granted to NUHW employee supporters to conduct electioneering activities in the employer's facilities.

7.

Objections 25-27

(25) The employer, by its agents, assisted SEIU representatives by granting them access to post SEW election flyers in the employer's facility, while at the same time removing election flyers supporting NUHW from the facility and engaging in other conduct which improperly encouraged employees to vote for SElU and not to vote for NUHW.

(26) The employer, by its agents, unlawfully restricted employee access to bulletin boards within the employer's facilities.

(27) The employer, by its agents, discriminatorily granted supporters of SEIU enhanced access to bulletin boards within the employer's facilities, and/or unlawfully restricted supporters of NUHW from accessing said bulletin boards.

C. Discussion of the Evidence

1. Objection Nos. 1-6

These objections relate to alleged conduct of SEW at Seton Coastside, a long-term care facility, on March 21, the day of the election. 2 Susan Ordona, an SEW steward 3, is alleged to have stationed herself at the door leading into the Fireside Lounge, which is adjacent to the Solarium, the room where the voting took place, 4 and there to have engaged in electioneering activity. All voters had to enter the polling place through this door. Ordona is also alleged to have peered into the Solarium on several occasions. Another employee, Marinela Pica, is alleged to have escorted employees to the polling place while encouraging them to vote for SEIU. Finally, two SEIU representatives are alleged to have stationed themselves in the cafeteria during polling and to have engaged in electioneering conduct. Tanya Velasquez, a NUHW supporter and the NUHW's election observer, testified she observed Ordona at the aforesaid door for the entire two hours the polls were open in the
2 3

All other objections relate to alleged conduct of SElU and the Employer at Seton Medical Center. 1 fmd that Ordona was an agent of SEIU by virtue of being a SErU steward. See, e.g., Electrical Workers, Local

45, 345 NLRB No. 3 (2005).

4

The door to the Fireside Room was approximately 25 feet from the door to the Solarium.

morning session and could hear her as well. She testified that Ordona was holding "Vote for SErU" signs and telling employees to go vote for SEIU. Velasquez testified that Ordona peered inside the Solarium on two occasions. She also testified that Pica escorted fifteen employees to the Solarium while telling them to vote for SEfU. She testified that she heard Jesus Hernandez, a SErU steward, guide employees to the polling place during the afternoon session.

I do not find Velasquez to be a credible witness. NUHW introduced a diagram of the Coastside facility. Based on this diagram, it seemed impossible that Velasquez could have seen the Fireside Lounge door from where she was seated during the election. This was confirmed later by photographs introduced by the Employer and the testimony of Marifi Dizon, the Employer's observer, and John Morgan, the SEIU's observer, that the table and chairs as depicted in the photographs were located as they were during the election. 5 Velasquez did not report Ordona's conduct to the Board Agent until just prior to the afternoon session. When asked why, she said that the Board Agent had instructed her not to talk. Her recollection was spotty, as she testified there were two observers in the room whereas, in fact, there were three. Keller testified that Velasquez had mentioned to her that a person on disability, Pica, had come in to vote and a "bunch" of people voted with her. Velasquez did not report this to the Board Agent.

Jenneth Manalese, a CNA Restorative at Coastside and NUHW supporter, whose job includes ambulating patients around the facilities' corridors, testified that, while ambulating patients between 6:00 and 8:00 a.m., i.e., the morning polling hours, she observed Ordona at the door to the Fireside Lounge about eight times as Manalese completed a circuit that brought her by the Fireside Lounge. Ordona was wearing a purple shirt with SEfU's logo, i.e., the standard identifiable shirt worn by SEIU supporters and representatives. Manalese did not testify that Ordona was carrying a "Vote for SEIU" sign, contrary to Velasquez, and I find that Ordona carried no such sign. Based on Manalese's testimony, I find that Ordona was stationed at the Fireside Lounge door, greeted employees as they approached the polling location, and showed them the way to the Solarium. She did not engage in any effort to persuade employees to vote 1 find Dizon and Morgan to be credible witnesses. NLTHW tried to salvage Velasquez's testimony by recalling Ona Keller, its representative who was present before and after the polling periods at Coastside, to testify that the
5

table and chairs were in a different location. I find that this testimony was inaccurate, inconsistent, contrary to common sense, and conflicting with known facts; accordingly, I do not credit Keller with respect to this testimony.

for SErU. There was no evidence offered that any voters stood in line at the Fireside Lounge door. If there were any lines, it would be at the Solarium door, about twenty-five feet away. Amalia Woods-Drake, a SEIU representative, spent the polling period in the cafeteria. She testified that Ordona, a CNA who was off work on election day, was with her in the cafeteria except for a couple short intervals. I do not credit this testimony to the extent it is inconsistent with Manalese's testimony. Ordona, Pica, and Hernandez were at the facility that day as part of the SEW's "get out the vote" plan, which involved calling workers fi7om the cafeteria.

NUHW Representative Keller testified that the Board Agent, prior to the second voting period commencing at 1:00 p.m., instructed the parties that there was to be no campaigning or monitoring of the polls within 100 feet of the polls. Employer observer Marfi Dizon testified that the Board Agent said, at the pre-election conference held the previous evening, that campaigning was prohibited within the entire Seton Coastside building. I believe that Dizon's recollection was inaccurate or that she misunderstood the Board Agent, and I do not find that the Board Agent established the entire building as a no-electioneering zone.

I find that there is insufficient evidence to sustain the allegation that Pica escorted voters to the polls while engaged in electioneering on behalf of SEW. Petitioner's evidence on this objection was supported only the by discredited testimony of Velasquez. An equally plausible explanation for Velasquez's testimony, even if credited, is that Pica came in to vote at the same time as other employees. In any event, Pica was not established to be an agent of SEIU.

SEIU representatives Woods-Drake and Max Arias located themselves in the cafeteria during the morning polling session at Coastside. The door to the cafeteria is approximately fifty feet down a corridor from the door to the Fireside Lounge. The cafeteria, perhaps better described as a kitchen and lunch room, is not open to the public, and the door is locked. The SEW representatives could not be seen nor heard from the Solarium or from the corridor outside the Fireside Lounge. They were present in the cafeteria the entire time, and Woods-Drake testified that Ordona, Pica, and Hernandez were there with them most of the time as part as part of the SEIU's "get out the vote" effort. There was no testimony that any employees entered the cafeteria during the morning polling hours or had any reason to do so. No testimony was offered about the patients' use of the cafeteria for breakfast, although there was testimony that some ate

10

lunch and dinner there. There was no testimony that the SE1U representatives interacted with any Coastside employees other than the off duty stewards. I find that the presence of the SEW 6 representatives in the cafeteria did not constitute any objectionable conduct. N-LJHW contends that the conduct described herein constitutes objectionable electioneering and objectionable surveillance. These two issues require separate analysis. J.P. Mascaro & Sons, 345 NLRB 637, 638 (2005). 1 conclude that the evidence does not warrant a conclusion of objectionable electioneering. The credible evidence herein establishes that Ordona stood at the door to the Fireside Lounge in a clearly-identifiable SElU shirt, greeted employees as they came to vote, and directed them to the polling location. There is no credible evidence that Ordona engaged in electioneering activity. This is also true with respect to Hernandez and Pica. 7 In C&G Heating and Air Conditioning,Inc., 356 NLRB No. 133 (2011), the Board stated that existing Board precedent holds that "[p]resence [of a union representative in the vicinity of the polls] alone, in the absence of evidence of coercion or other objectionable conduct, is insufficient to warrant setting aside an election. Harlan#4 Coal Co., v. NLRB, 490 F.2d 117, 121 (6th Cir. 1974), cert. denied 416 U.S. 986 (1974)." See Boston Insulated Wire & Cable Co., 259 NLRB 1118, 1119 (1982), enf d 703 F.2d 876 (5th Cir. 1983). NUHW argues the strict rule set forth in Milchem, Inc., 170 NLRB 362 (1968), where the Board stated that elections would be overturned where representatives of any party to the election engaged in "prolonged" conversations with voters waiting to cast their ballots, regardless of the content of the conversation. However, since there was no evidence that Ordona spoke to voters standing in line or, indeed, that there were ever voters standing in line at Seton Coastside, Milchem does not apply. NUHW cites ITTAutomotive, 324 NLRB 609, 623-25 (1997), Performance Measurements Co., Inc., 148 NLRB 1657, 1659 (1964), and Electric Hose & Rubber Co., 262 NLRB 186, 216 (1982) to support its contention that SEW, by the presence of Ordona at Fireside
6 No evidence was presented

maintained lists of voters who had voted. In any event, maintaining such a list by a union agent is not objectionable unless more than a de minimis number of voter-, have knowledge of the maintenance of the list. C&G Heating and Air Conditioning,Inc., 356 NLRB No. 133 n. 4 (2011). Here, there is no evidence that any employee had the perhaps mistaken impression that such a list existed. Manatese testified that Hernandez suggested to her, in the hallway, that she vote for SEIU, but because he knew that she was an ardent NUHW supporter, his comments were playfid banter rather than electioneering.
7

that Woods-Drake,

Arias, or SEIIJ stewards

II

Lounge door, engaged in objectionable surveillance. Those cases were discussed by the Board and distinguished in J.P. Mascaro, supra. In PerformanceMeasurements, the employer's president stood by the door to the election area for prolonged periods and employees had to pass within two feet of him to gain access to the polls. In Electric Hose, the Board found objectionable the presence of one supervisor 10- 15 feet from the entrance to the polling area and the presence of two other supervisors in areas that employees had to pass through in order to vote, reasoning that the only plausible explanation for the supervisors' conduct was to convey to employees that they were being watched. In ITTAutomotive, there was a "continued presence" of managers standing in a circle in an area through which employees had to pass through in order to vote. Here, Ordona was present, at least, for prolonged periods at the Fireside Lounge door through which employees had to pass in order to vote. There was no reason for her being there. Because the Notice of Election clearly set forth where the polling was to take place and the hours of the election, it is not plausible to believe that Ordona's presence was to show employees where to vote at this relatively-small facility. Based upon the testimony of Manalese, which was corroborated somewhat by Velasquez, and Woods-Drake, I find that Ordona was present for prolonged periods, especially when employees were approaching to vote, and that she may have retired to the cafeteria during slow moments. Ordona was not called to testify, and I draw the inference that she would not have testified that she was not there or was only there for brief periods. See E.L. C Electric, Inc., 359 NLRB 1, 3 (2012). Under this precedent, it seems clear that, had a supervisor or manager of the Employer been stationed at the Fireside Lounge door for prolonged periods, objectionable conduct would be found. This presents the issue of whether the same result should obtain when it is a union steward, i.e., a coworker of the employees, who is present at a location where voters have to pass in order to vote. In a concurring opinion in J P. Mascaro, Member Liebman stated: "...an employer's presence on election day sends a far different message to employees than a union's presence. The ftindamental fact is that '[aln employer in an unorganized plant, with his almost absolute control over employment, wages and working conditions, occupies a totally different position in a representation contest than a union, which is merely an outsider seeking entrance to

12

the plant.' NLRB v. Golden Age Beverage Co., 415 F.2d 26, 30 (5h Cir. 1969)." Of course, SEW is the incumbent union herein, not an outsider seeking entrance. In Nathan Katz Realty, LLC v. NLRB, 251 F.3d 981 (D.C. Cir. 2001), the Court applied PerformanceMeasurements and Electric Hose against a union where its agents sat in a car by which voters had to pass in order to vote and motioned, gestured, and honked at the employees as they passed the car. The Court summarized Board precedent: "Together, Electric Hose and PerformanceMeasurements seem to stand for the proposition that a party engages in objectionable conduct sufficient to set aside an election if one of its agents is continually present in a place where employees have to pass in order to vote." Id. at 992. In subsequent cases, the Board has not disagreed with this summary of its rulings but has distinguished cases raising such issues on the facts. See, e.g., Lily TransportationCo., 352 NLRB No. 121 (2008). In Covenant Care of Ohio, Inc. v. NLRB, 180 Fed.Appx. 576 (6 th Cir. 2006), the Court pointed out that the Board reasonably "chose to follow the cases addressing electioneering activity outside of the building where polling was taking place and outside of the no-electioneering zone, instead of the cases addressing party agents stationed almost directly outside the actual polling area." In Good SamaritanHospitalEmployer, 2009 WL 981075 (NLRB Div. of Judges, 2009), the AU distinguished Nathan Katz Realty on the facts but also cited the court of appeals' decision in Covenant Care as authority that the "Board has implicitly limited the application of Electric Hose [and similar cases] to ... voters being subjected to their supervisors' scrutiny immediately before entering the polling area..." After the court of appeals declined to enforce the Board's order to bargain in Nathan Katz Realty, the Board on remand directed that a hearing be conducted before an AU to take evidence regarding the issue of the union agents' presence and conduct near the polling place. Nathan Katz Realty, LLC, 2002 WL 1883790 (NLRB Div. of Judges, 2002). The ALJ disagreed with the Court's analysis of PerformanceMeasurements and Electric Hose. He noted that the Board has consistently found that the mere presence of union representatives at or near the polling place, absent evidence of coercion or other objectionable conduct (such as electioneering) is insufficient to warrant setting aside an election. See, e.g., C&G Heatingand Air Conditioning, Inc., supra. He stated that the Board's basis in Electric Hose for finding objectionable conduct was the judge's conclusion that the presumed purpose of the presence of the supervisors outside

13

the polling area was to survey employees and convey the impression they were being watched. The judge cited three employer surveillance cases to support his finding of objectionable conduct. The ALJ in Nathan Katz Realty then stated that the test to be applied is whether the union agents engaged in unlawful surveillance by its conduct of observing employees leaving or entering the polling place. "In evaluating that issue, the Board and the Courts, have long applied differing standards to certain types of employer and Union conduct during election campaigns, in recognition of the fundamental fact that an employer, unlike a Union, has virtually absolute control over employees' terms and conditions of employment. Randell Warehouse ofArizona, 328 NLRB 1034,1037 (1999), enfd. denied on other grounds, 252 F.3d 445 (D.C. Cir. 2011)." Applying this test, the ALJ concluded that the union did not engage in objectionable conduct even though similar conduct by an employer would be deemed presumptively unlawful and objectionable absent an adequate explanation. The report and recommendations of the ALJs in Nathan Katz Realty and Good Samaritan Hospitaldo not show any subsequent history.8 Consequently, they have no precedential value. However, their reasoning is persuasive and is supported by case authority. I conclude that the continued presence of Susan Ordona, a union steward, at the Fireside Lounge door cannot be deemed, in the absence of electioneering or any other coercive conduct, to constitute objectionable conduct warranting the setting aside of the election herein. C&G HeatingandAir Conditioning,Inc., supra. I recommend that the Board overrule Objection Nos. 1-6 for the reasons stated above. 2. Objection Nos. 7 and 8 These objections allege that SEIU created an atmosphere of fear and coercion, assaulted and battered an employee who supported NUHW and/or condoned the assault, and threatened another employee with physical harm. Petitioner called employees Elsie Rapasara and Merle Aragon in support of these objections. Rapasara testified that Marc Quarles, an employee of an affiliated employer, 9 pulled an NUHW pulley lanyard off of her shirt the day before the election
8 Presumably these matters were

withdrawn before the Board could adopt the recommended decisions.

9 Quarles is employed by an affiliated hospital that, like the Employer, is owned by the Daughters of Charity group, bargains as a group with SENJ, and is signatory to the same collective-bargaining agreement. Since Quarles' employer was never alleged in this matter to constitute a single employer with Seton Medical Center, I am treating

14

in the Outpatient Radiology Building. She told seven employees about this incident. She knew Quarles because he had been a member of the SEIU's bargaining team and was involved on an issue of retroactive pay which applied to her. There were no other witnesses to this incident. Quarles, who testified that he was at Seton Medical Center to update employees about the ongoing bargaining and to discuss a retroactive pay arbitration award with affected employees, including Rapasara, denied that he had removed the pulley. Aragon testified that she and five other EVS employees were meeting with Kim Tavaglione, an NUHW representative, in the cantina, a public area of Seton Medical Center. A person, later identified as SEW representative Shareefa Joseph, inserted herself into the conversation and argued with Tavaglione over the respective merits of their labor organizations. According to Aragon, after a while, Joseph challenged Tavaglione with the following or similar words: "You want to go out? Let's do it outside." The situation calmed down, and no one went outside. On the other hand, Joseph, in recalling this incident, testified that she was sitting in the cantina with Jeane Cronin, an SEW representative, when they were approached by Tavaglione in an argumentative fashion. Joseph testified there was some back and forth between Cronin and Tavaglione with the latter being the aggressor. Joseph counseled Cronin to step away. Joseph did not say anything to Tavaglione about going outside or anything else. Joseph is 57' tall and weighs 108 pounds. She estimated, without contradiction, Tavaglione, whom she knew before the trusteeship,10 to be 5'4", 280 pounds. I find insufficient evidence to sustain either objection. Objection No. 7 is a catchall allegation that SEW created an atmosphere of fear and coercion, but it is clear that any such atmosphere is alleged to have resulted from the two incidents described above. Other testimony of the Petitioner suggests that SEW created a party atmosphere, with free food and gifts distributed in the cafeteria. As for the Rapasara-Quarles incident, I see no reason to discredit either of the two participants. Since Petitioner bears the burden of proof, this tie must go to SEIU. If a finding of credibility is required, in the words of a renowned West Coast arbitrator, I Quarles and other similarly-situated
employees. '0 On January 27, 2009, SERJ International imposed a trusteeship on SEIU United Healthcare Workers - West and replaced the officers of that organization. Many of the former officers and employees of SErU-UHW formed NUHW. employees of affiliated hospitals as outside SElU representatives, not

15

do not know who is telling the truth, but I know whom I believe. I believe Quarles. More importantly, this incident involved only two persons, one of whom, Rapasara, was eligible to vote in the election. Rapasara was a strong supporter of NUHW, and it is highly improbable that the alleged pulley incident coerced her into changing her vote. As for the alleged Tavaglione-Joseph incident, it is noteworthy that Tavaglione was not called to testify. Cronin was called to testify prior to Joseph but was not asked by either party about this incident. NUHW would not have any reason to know that Cronin was allegedly involved in the incident, whereas SEIU would have known. Although I have some concerns about Joseph's testimony on other matters, I have no reason to discredit her, or Aragon, on this incident. The size disparities and past association of interest, along with the testimony in totality about this incident, lead me to conclude that it was a "tempest in a teapot," not something that seriously could coerce employees in the fi7ee exercise of their franchise herein. For these reasons, I find that NUHW has not sustained its burden of proof on Objection Nos. 7 and 8, and I recommend that the Board overrule these objections. 3. Objection No. I I Petitioner produced evidence that SEIU provided such items as weepuls (defined as little fuzzy farry ball things), lanyards, pens, pulleys, and food to eligible voters. SEfU produced evidence that NUHW provided donuts and other low-cost items to eligible voters. Both parties engaged in such activity to attract employee attention to their campaign materials and solicitations. Such activity is not objectionable nor does it become so by the apparent fact that SEfU's budget for such activity was larger than NUHW's. Petitioner also alleged that Ramina Loreto, an SEIU representative, offered to take an employee to dinner.' I Ricardo Leiva testified that a coworker told him that Loreto had offered him "food and entertainment." While this choice of words strikes as odd, it is also clear that this testimony was hearsay. For these reasons, I recommend that the Board overrule Objection No. 11.

Presumably, this offer was to encourage the coworker to vote for the SEIU, but there was

no

evidence of that

motive.

16

4. Objection No. 13 Petitioner alleged that SEIU representative Shareefa Joseph offered to resolve a Respiratory Department employee's dues issue in exchange for her support and impliedly threatened the same employee. Suad Husary, a NUHW supporter and Respiratory Care Technician, testified that Joseph entered the Respiratory Department's break room and spoke to employees. An employee named Sylvie Paes told Joseph that he had been overcharged for union dues and that nobody had helped her resolve the problem. Joseph responded: Well, if we fix that problem for you, would you vote for SEIUT' A short time later, Joseph, having learned that Paes's husband worked in the same department, said: "Oh, how come they let you and your husband work in the same area?" Joseph testified that she visited the Respiratory Department to discuss representational issues and provide updates on bargaining. She introduced herself to Paes and asked her if she had any issues she wanted to discuss. Paes responded that she had an issue about her dues. Joseph said she looked at her clipboard and noticed someone with the same last name in the department and asked if the person was related. Paes responded it was her husband. Joseph offered to schedule a meeting where both Paes's could pose any issues and discuss her dues issue further. Mark Schachner, Manager, Respiratory Care Services, testified there was no policy against family members working in the same department. Joseph's testimony appears more credible on its face than Husary's. It is unlikely that a union representative would enter a break room and attempt to bribe and threaten an employee to secure her support with a number of other employees looking on. I am more inclined to conclude that a participant in a two-way conversation was more likely to get the conversation right than someone who was eavesdropping. Husary's testimony about the implied threat was undercut by the manager's testimony that no policy prohibited a husband and wife working in the same department. I find that Petitioner has not carried its burden of proof, and I recommend that the Board overrule Objection No. 13. 5. Objection Nos. 16 and 17

17

Petitioner alleges that the Employer contributed financial and/or other support to SEIUThe crux of this allegation is that the Employer paid certain contractual benefits to Rudy Vallin, an employee of Seton Medical Center, who was on contractual union leave during the election period. Vallin was on leave pursuant to Article 25(F) of the collective-bargaining agreement in effect at the time, which provides, in relevant part: "...one (1) employee at any given time will be granted an unpaid leave of up to two (2) weeks from work for the purposes of engaging in Union business, including but not limited to..." During this time, Vallin continued to accrue the PTO and ESL benefit, and the Employer continued to pay the contractual health benefit, at least, for some part of this leave. Article 20(A)(2)(c)(applicable to Seton) provides that employees on unpaid leave of absence, such as union leave, shall not accrue PTO and ESL; similarly, an employee on such leave is not paid health benefits. Tim Urbanski, an HRIS and Compensation Analyst employed by the Employer, explained that the payments of health benefits and the accrual of PTO and ESL was due to the failure of Human Resources to be notified of Vallin's union leave and that the Employer, as of the time of the hearing, was in the process of correcting this error. I find Mr. Urbanski to be a credible witness, and he offered a plausible explanation, supported by documentary evidence, for the error. I find that the Employer did not intentionally pay non-contractual benefits to Vallin while he was on union leave. The record establishes that the Employer granted Vallin union leave and that he used this leave to present himself almost full-time at Seton Medical Center to engage in electioneering activity in addition to representational activity and bargaining. Article 25(F) is written broadly, and "Union business" as used therein is not intended to prohibit certain kinds of union business, such as engaging in NLRB-election campaigns. Arguably, if the Employer refused to grant Vallin's request for Union leave, it could have been found to violate Section 8(a)(5). Cf., ATCIVancom of'California,338 NLRB 1166 (2003). Accordingly, I reconu-nend that the Board overrule Objection Nos. 16 and 17. 6. Objection No. 19 Petitioner alleges that the Employer, by its agents, campaigned for SEIU, expressed support for SEIU and/or disapproval of NUHW. No evidence was produced in support of this objection. I recommend that the Board overrule Objection No. 19.

18

7. Objection Nos. 21-23 Petitioner alleges that the Employer imposed access, solicitation, and distribution policies that discriminated in favor of SEIU, the incumbent union. For the most part, these allegations were supported by testimony that non-employee SEW representatives were observed in break rooms engaging in electioneering activity whereas non-employee NUHW representatives were 12 limited to public areas, i.e., the cafeteria, the cantina, and the main lobby. There was considerable testimony from NUHW supporters that they observed SElU representatives engaging in campaign activities in non-public areas such as break rooms in the various departments of Seton Medical Center. I am going to discount the portions of that testimony that do not establish that managers or supervisors of the Employer, taking into account reasonable inferences and common sense, were aware of such activity. Given that representatives of SEfU, as the incumbent union with contractual access rights, had the right to be in break rooms for representing its membership or providing updates on the ongoing collective-bargaining negotiations, the lines between such activity and electioneering activity tend to be obscured. No doubt SElU representatives took full advantage of their contractual access rights, and no doubt the increased presence of SElU representatives engaged in representational activity had a positive effect on its election prospects, but this is not objectionable in itself. These objections allege objectionable conduct on the part of the Employer, and it is to the Employer's knowledge and condonation of electioneering activity by SEW representatives to which we must look. Article 32(A) of the Agreement provides, in relevant part: "A [sic] duly authorized Field Representatives shall be allowed access to visit the facility at all times to ensure compliance with this Agreement and to conduct Union business .... Union Field Representatives shall advise The the Vice President of Human Resources or his/her designee immediately, in person or by telephone, upon entering the campus of the departments and areas the representative will visit."

12

Petitioner apparently contends that the Employer allowed SEIU to conduct weekly

catered

events

but that NURW representatives were denied the same access. I find no merit to this allegation, as both unions were allowed to conduct, and did conduct events, in the public areas. It is not material that the SEIU, with apparently a larger budget, was able to engage in such activity more firequently.

in the cafeteria

19

Additionally, the Employer maintains a written policy on Solicitation and Distribution of Written Material. Pt. Exh. 23. It provides, with respect to non-employees, 13 that such persons 44may not, at any time, solicit or distribute literature or other items of any kind or for any purpose on Seton Medical Center/Seton Coastside property." Employees may not engage in such solicitations or distributions during work time or at any time in immediate patient care areas. Employees may not distribute literature in any work areas." Work areas are defined to exclude employee lounges and break rooms. The Employer also notified employees at the onset of the campaign period that "[w]hile unions are allowed to campaign on hospital property, they are not hospital business or patient care. 14,, allowed to do so in work units nor are they allowed to disrupt Pet. Exh. I (a). Finally, the Agreement provides that the "posting of Union notices will be limited to the bulletin boards to which the Union is given use under this section." At Seton Medical Center, four glass, locked, and enclosed bulletin boards are given for the exclusive use of the Union, and 35 unlocked bulletin boards are identified for the Union's use. The Agreement does not provide that the unlocked bulletin boards are for the exclusive use of the Union. The evidence established that SElU greatly increased the number of its representatives assigned to Seton Medical Center during the pre-election campaign period. Whereas prior to the filing of the petition by NUHW, SEW would typically have one Field Representative assigned to the Seton facilities, during the campaign period, SEW had as many as 12 to 15 individuals at, primarily, Seton Medical Center. Jean Cronin was the SEIU representative who headed up its efforts at Seton. These efforts not only included the electioneering campaign, but also the contract campaign and the representational campaign. Cronin concluded that SEIU's chances in winning the election would depend in large part upon how well it was perceived by employees in obtaining a good new contract 15 and in representing employees under the existing contract. Cronin and employee and chief steward Rudy Vallin testified that Vallin served as the point person in the contract and representation campaigns, especially during the periods in which he
13

The policy refers to employees as "associates."

definition of "work units" " It is possible that "work units" is broader than work areas, as defined; a common sense would include those units' break rooms. negotiating for a new The existing contract was due to expire on April 30, 2012, and the parties had been contract since November 2011.
'5

20

was on contractual union leave. SEW reasoned that employees would see professional union representatives come and promise a lot when their support was being solicited but disappear when the election or negotiations were over. For this reason, Vallin was selected for the contract and representation campaigns, because employees knew him and knew he would be there after the election. Cronin's testimony made a lot of sense. But it also implied that the other representatives were freed up to engage in electioneering activity. These other representatives were Cronin, Rachel Zamar, Marc Quarles, Amalia Woods-Drake, Carolyn Confer, Ramina Loreto, Shareefa Joseph, Lillee Vallee, and others who were not identified by name. Petitioner's witnesses testified, and I find, that SEIU representatives engaged in a considerable amount of electioneering activity in the Employer's departments and patient floors and hallways during the critical period between the filing of the petition on January 27 and the election on March 21.
16

A good deal of this activity took place in break rooms. Ricardo Leiva

testified he observed SEIU representatives many times in the surgery department, carrying flyers, and handing out trinkets. 17 Merle Aragon testified she observed Rachel Zarnar and Ramina Loreto electioneering in the EVS department inside and outside of break rooms. Testimony was presented, supported by a photograph, that Zarnar was electioneering at the door to a patient's room. I do not credit the testimony of SEW representatives, other than Rudy Vallin, that the flyers they carried were solely related to negotiations. Such testimony is inconsistent with the testimony of Jean Cronin that Vallin was the point person on negotiations and representation issues. Jose Banuelos testified that, after a pre-shift huddle during which Ojie Rayala, EVS Manager, spoke to employees about work topics for fifteen minutes, Rayala introduced a group of SEIU representatives, perhaps five in number, who then spoke to the employees about why they should vote for SEIU. Banuelos complained ultimately to Jorge Rodriguez-Tower, the Employer's Chief of Security, who said he had no issues with their conduct, presence, or activity. Banuelos testified he observed SEW representatives throughout the hospital carrying
16

21.
17

Unless otherwise stated, all conduct discussed herein occurred during this critical period of January 27 to March Trinkets is shorthand for pens, lanyards, pulleys, weepuls, stickers and beads, which can be collectively

described as items of insignificant value designed to draw attention to the party distributing them.

21

election flyers. Juan Pedroza testified he saw Ron Krause, Director, Imaging Services, remove a NUHW poster that Pedroza had posted. Pedroza observed Joseph almost daily in the Radiology Department engaging in electioneering activity. He complained to Krause about this to no avail, but, when Colleen Fewer was SEfU's duly-authorized representative prior to International's imposition of the trusteeship, he saw Krause question her as to what she was doing in the break room. DeeAnn Dowdy, a PBX Operator on the ground floor, which is not a public area, observed SEW representatives nearly every day carrying and handing out trinkets and flyers. Suad Husary testified she complained to Rodriguez-Tower and Gene Anne Lamoria, Director, Respiratory Care, about Joseph's disturbing employees in the break room with electioneering. She was initially told that Joseph was an SEW representative and had the right to be there. However, when Husary reminded them that there was patient information readily observable in the room, which was restricted to staff only, Joseph was instructed to leave the room by Lamoria. On the other hand, Patricia Alvarez, Lead Organizer for NUHW, testified she was sitting in the cafeteria when Chief of Security Rodriguez-Tower sought her out and informed her that NUHW representatives were confined to public areas. Ona Keller, an NUHW representative, testified she went to the ground floor and was immediately directed to leave by a security guard. The Employer's witnesses testified inconsistently about its policies with respect to the incumbent union's right to engage in electioneering activity in the break rooms. Mark Schachner, Manager, Respiratory Care Services, believed that SEIU, as the incumbent union, had rights to talk to employees while they were on break in the department. 18 He came by this understanding after a conversation with Colleen Fewer. Fewer was the SEIU representative prior to the trusteeship in January 2009; she switched to NUHW at that time. Schachner changed this department's policy just prior to the election because of employee complaints of disturbances. Deborah Jones, Director, Materials Management, thought that both unions were allowed to access break rooms and talk to employees who were on break. She received a couple complaints from employees about SEIU representatives disturbing their work. Ron Krause, Director, Imaging Services, testified he believed there were no restrictions on what SErU could place in its
18

In

Respiratory Care, there was no separate break room.

Employees

would take their breaks in a work area.

22

bulletin boards either prior to or during the critical period. He testified that, at the beginning of the critical period, the Employer's policy was unclear but generally understood to mean that NUHW representatives could not access the break rooms. However, as the election drew nearer, Human Resources changed policy and told the department heads, at a Leadership meeting, that NUHW representatives were allowed to access the break rooms. As for bulletin boards, he understood them to be for the exclusive use of the SElU and admitted he could have removed NUHW material posted thereon. Jorge Rodriguez-Tower was Chief of Security at Seton Medical Center. Contrary to the testimony of Ron Krause, Rodriguez-Tower testified that NUHW representatives were never allowed access to break rooms but were restricted to public areas. Security's fimction is to enforce the access and visitation rules.' 9 At the time of the election, Judy Frates was employed as the Employer's Human Resources Manager. She held that position from June 2010 to June 30, 2012; she is no longer employed by the Employer. 20 Prior to Frates, the Human Resources Manager was Minyon Robinson. Robinson required union representatives to contact Human Resources when visiting the hospital, as set forth in the Agreement, but that requirement was dropped shortly after Frates assumed the position. Frates testified that it was her understanding that the term "union business" as used in Article 32(F) meant anything that had to do with the Union. More importantly, the Employer did not monitor what types of union activity SEIU engaged in during her period of employment. Sometime after the trusteeship, NUHW filed an earlier petition for representation but withdrew that petition prior to the election. 21 Frates testified that the term "work unit" referred to an employee's place of work. Some break rooms are in work units; others are not. SEW representatives were allowed in break rooms unless employees were working in there. As an example, nurses would sometimes chart
9 Rodriguez-Tower testified that, during the critical period, NUHW representatives did not have to sign in and wear a visitor badge to enter the hospital, but that all other visitors, including SEIU representatives, did. I do not credit this testimony, as it is contradicted by the testimony of all other witnesses. 20 In its brief, the Employer inaccurately states that Frates was employed when the April 22, 2010, Advice Memorandum was issued. 21 The parties stipulated that the petition in the prior case was unblocked in November 2010 and was withdrawn on January 12, 2011. This was the critical period in the prior case.

23

patients in break rooms. Frates testified that, at the outset of the campaign period, NUHW representatives were not allowed in break rooms. NUHW representatives were supposed to go through the Emergency Room security area upon visiting the hospital and get badges, but oftentimes, according to Frates, they did not. At one time, NUHW representatives wore a badge that was of a different color than the badges worn by other visitors. Frates testified that SEIU representatives were allowed to engage in electioneering activities anywhere in the hospital except for work areas. She testified further that SErU representatives were permitted to post election material on the bulletin boards assigned to SEfU's use. Shortly before the election, i.e., after March 12, the Employer purportedly made the decision to change its policy and allow NUHW representatives access to break rooms. Oddly enough, the Employer did not inform NUHW of this change in policy. NUHW's Alvarez complained to the Employer on March 12 that SEIU representatives were campaigning in work units and break rooms and posting campaign materials on the bulletin boards and provided copies of those materials to the Employer. The Employer made no response to this complaint to NUHW. Frates did not mention Alvarez's complaint as a reason for the Employer's change in policy regarding NUHW access; instead, she said the policy was changed because she had been told that NUHW was accessing the break rooms anyway. When asked if she considered that the Employer's access, electioneering, and bulletin board policies gave an advantage to the SEl-U in the election, Frates replied that she did not have an answer. On the basis of the foregoing evidence, I find that the Employer permitted SEfU representatives access to non-public areas of the hospital to engage in electioneering activity and that it did not permit NUHW representatives the same access rights. I find that these discriminatory policies were known to employees. The Employer claims it changed these policies shortly before the election but less than two weeks prior to the vote. Because the Employer never informed NUHW of this change in policy, this supposed change had no effect and did not level the playing field even late in the game. Just because the Employer's policies discriminated in favor of SEIU does not necessarily mean that they amount to objectionable conduct warranting the setting aside of the election herein. As a general rule, in the absence of unlawful interference, an employer may express a preference for one union over another. See County Waste of Ulster, LLC, 353 NLRB 842, 849

24

(2009) and cases cited therein; Matros Automated Elec. Constr. Corp., 353 NLRB 569 (2009); Amboy Care Center, 322 NLRB 201 (1996). 22 However, the employer may not assist one of two competing unions by means which are coercive or discriminatory. In Davis Supermarkets, 306 NLRB 426 (1992), affd 2 F. 3d 1162 (1993), the Board found an employer's conduct unlawful when it discriminatorily applied its no-solicitation rule against supporters of one union but not the other. In Duane Reed, Inc., 338 NLRB 943 (2003), the Board found unlawful an employer's provision of meeting space on company time to a preferred union, contrary to its own nosolicitation policy, and its requirement that employees attend those meetings on company time while denying equal access to a rival union. Moreover, the Board held that these acts of unlawful assistance reasonably tended to coerce employees in the exercise of their free choice in selecting a bargaining representative. See also Raley's Inc., 256 NLRB 946 (198 1), aff d 272 NLRB 1136 (1984).

SEIU and the Employer rely on West Lawrence Care Center Inc., 308 NLRB 1011 (1992). In that matter, the Board held that an employer violated Section 8(a)(5) of the Act when it caused the removal of an incumbent union business agent engaging in electioneering activity in the non-public areas of the nursing home. The parties' contract contained an access provision which the Board interpreted broadly to encompass campaign activity. At the time, an election was pending pursuant to the petition of a competing union. The majority concluded that the breadth of the access provision and the absence of any contrary practice meant that the access provision applied to any union business, including electioneering. Citing RCA del Caribe, 262 NLRB 963 (1982), in which the Board held that an employer could not discontinue bargaining in the face of an election petition filed by a rival union, the majority discounted the dissent's argument that the employer's neutrality requirement required maintenance of the status quo, which would not include access for electioneering purposes. 23 The dissent complained that the
Cf.Laub Baking Company, 131 NLRB 869 (1961). In this case, the Board stated: "An employer who is not impartial as between competing unions in a representation campaign may thereby violate Section 8(a)(2)." NLTHW contends that Laub prohibits an employer from knowingly allowing an incumbent union to abuse its contractual rights in order to obtain an unfair campaigning advantage over a rival union.
22

West Lawrence has been cited by the Board a number of times for the unremarkable proposition that an employer violates Section 8(a)(5) when it unilaterally changes its contractual access provisions. It has not been cited for the proposition advanced by SEITJ herein, i.e., that it is not objectionable conduct to allow an incumbent access for electioneering purposes while denying it to the rival union. West Lawrence involved an unfair labor practice under Section 8 of the Act, not objectionable conduct under Section 9, and the rival union was not a party to the proceeding..
2-3

25

majority did not explain "how the Employer could lawfully permit campaigning by one rival union without also permitting the other union access." The majority did explain that RCA del Caribeno longer required an employer's strict neutrality in the face of an election petition filed by a rival outside union. The majority's opinion in West Lawrence appears to have gone beyond RCA del Caribe. In RCA del Caribe,the Board, after carefully balancing the competing interests of preserving employee free choice and promoting stability in collective-bargaining relationships, held that the Act did not permit an employer to withdraw from bargaining or refuse to execute a contract with an incumbent union because of the mere filing of a representation petition by an outside union. The Board pointed out that continuing to bargain could send a message signaling support for the incumbent union but that discontinuing bargaining could send a message signaling support for the outside union. These interests cancelled themselves out, leaving the important policy of stability in collective bargaining as the overriding policy. In West Lawrence, the Board did not engage in a similar balancing of competing interests and policies in an election proceeding under Section 9 of the Act. 24 Instead, it simply extended the holding in RCA del Caribe,that an employer could not discontinue bargaining with the incumbent union because of the mere filing of a petition by an outside union, to require the employer to follow a contractual provision that had the effect of requiring the employer not to be neutral in its access policies. Whereas RCA del Caribe was based upon the overriding interest of promoting stability in collective-bargaining relationships, which would clearly be adversely affected by allowing the employer to withdraw from bargaining with the incumbent union, the Board in West Lawrence did not explain how requiring the employer to be neutral in its access policies during the existence of a question concerning representation could adversely affect its

24

The Second Circuit Court of Appeals appears

to

have taken the view that the logic

of RCA

del Caribedoes not

when there is a question concerning representation pending. "Here, the ALJ reasonably concluded that, by allowing Local 124 to distribute the bonus, County Waste sought to influence the election in violation of section 8(a)(2) of the NLRA_ That Local 124 remained the collective bargaining representative until December 2 does not change our analysis. As the ALJ concluded, Local 124 lost the legal advantage of non-neutrality permitted by RCA del Caribe ... , as soon as it entered into a stipulated election agreement. Therefore, permitting Local 124 to distribute a bonus right before the election is not a privileged breach of neutrality." NLRB v. County Waste of Ulster, LLC, 455 Fed.Appx.32 (2n, Cir. 2012), enf g 353 NLRB 842 (2009).
apply

26

policy to promote stability in collective-bargaining relationships. In other words, the logic behind RCA del Caribeis not apparent in West Lawrence.25

Here, the Agreement allowed access "to ensure compliance with the Agreement and to conduct Union business." In West Lawrence, the contract allowed the Business Representative access to "discharge his duties as representative of the Union ... Union shall be permitted to The conduct Union meetings on the premises." I find that the provision herein "to conduct Union business" is quite broad and does not, on its face, prohibit the union business of engaging in electioneering activity prior to representation elections. 26

In West Lawrence, the Board suggested that even a clearly-worded broad access provision could nevertheless be restricted on the basis of evidence of past practice. 308 NLRB at 1012 n. 3. This is also general law where a contractual provision is not clear and unambiguous. The relevant past practice would include whether the Employer had ever limited access to break and an incumbent union could contractually agree to any number of preferences and advantages that would favor the incumbent over outside unions. For example, the parties could agree to a significant bonus
25

An employer

which was announced by the incumbent union just before the representation election. This is what happened in County Waste of Ulster, 353 NLRB 842 (2009), and the Board found this conduct to constitute unlawful 8(a)(2) assistance and objectionable conduct. This does not mean that the provision herein is not without problems or free from ambiguity. The first of the two stated reasons, i.e., to ensure compliance with the Agreement, is limiting. The Employer and SEIU contend that the second reason is limitless, i.e., that it means any business to which the Union is involved. Certainly, the meaning cannot be limitless. Taken to its extreme, this interpretation would allow the Union to sell lottery tickets, conduct a commercial enterprise, or open up a tavern in the break rooms. Moreover, why would the drafters of this provision follow a limited reason with a limitless reason? If the second reason were without limitation, the expression of the first reason would be rendered superfluous. One explanation could be sloppy draftsmanship, but that cannot be assumed. In these circumstances, courts have historically relied upon the standards of statutory and contract construction. One of these rules of construction is ejusdem generis (of the same kind), which means where a general term follows a series of specific terms, the general term is not to be construed in its widest extent but to include only things of the same kind. Application of this rule may not be warranted herein because there is no series of specific terms, only one. Bargaining history often is used to give meaning to contractual language that is not clear and unambiguous, but the record herein suggests the Employer has no institutional memory and the SEIU agents who drafted this provision may very well currently serve as agents of NUNW.
26

Also, the Employer offered into evidence an Advice Memorandum in Seton Medical Center, Case 20-CA-34687 (April 22, 2010). While this document was received (Board Exhibit No. 8), 1 cannot give it any weight with regard to its factual findings, because such firidings are typically based on, at least, double hearsay and there is no opportunity for cross-examination. Nevertheless, the Memorandum suggests that the practice of what "union business" was conducted under Article 32(F) was limited to representation and bargaining. The Memorandum referred to the "contractual obligation regarding 'duly-authorized Field Representatives' to administer the contract and conduct related union business." The addition of "related" to this contractual provision makes much more grammatical and interpretive sense, but it changes the meaning of that provision to exclude activities other than those related to representing employees under the Agreement, e.g., campaigning.

27

rooms for specific reasons or prohibited access for specific reasons. Moreover, since the visitation clause herein provides for not only what activity may be conducted but also who may conduct such activity, i.e., "duly-authorized Field Representatives" of the Union, the practice would be relevant to shed light on who qualified as such a representative. The practice might be different during different periods; one such period would be the prior pre-election critical period, which extended fi7om November 2010, when the first petition filed by N-UHW was unblocked, to January 12, 2011, when the petition was withdrawn. Colleen Fewer was called as a witness by NUHW. She was SEIU's only duly authorized representative at Seton Medical Center fi7om March 2008 until February 2009. When the SEW International imposed the trusteeship on the local union, Fewer transferred her allegiance to the newly-formed NUHW. Fewer testified that, when she served as SEIU's representative at Seton, she was told by Minyon Robinson, the Employer's Human Resources Manager, that she was limited to conducting representational duties in the break rooms. She was specifically told she could not discuss contract negotiations. She testified that employees would post personal notices on the Union bulletin boards. Rudy Vallin has worked at Seton Medical Center since 1996 and has been active in union matters since 1997, serving as, among other things, chief steward. He testified that he would have conversations with Fewer in the fall of 2008 about the difference in philosophies between the leadership of the SElU International and the local, differences which ultimately led to the imposition of the trusteeship in January 2009. He testified that he spoke to SEW representatives about the election scheduled for January 24, 2011, in public areas and a couple break rooms. I am quite sure that SElU supporters and representatives and NUHW supporters and representatives engaged in election talk all the time all over the hospital during the critical period, but that is not the relevant question. The relevant question is what was the official past practice between SEW and the Employer over the type of activity permitted in break rooms in prior years. This presumes Employer knowledge and acquiescence of such activity, and Vallin offered no evidence regarding these questions. There was no testimony as to the practice between January 2009 and June 2010. There was the prior election petition filed by the NUHW on February 2, 2009 (Case 20-RC- 18217) but

28

this was blocked by unfair labor practice charges until November 2010. As stated above, Judy Frates, the Employer's Human Resources Manager from June 2010 to June 30, 2012, testified that it was her understanding that what the Union could do under Article 32(F) was unlimited and that the Employer made no effort to monitor that activity. Frates was present during the prior pre-election critical period. Frates testimony is not inconsistent with that of Fewer, since Frates is testifying about a later period and her policies as Human Resources Manager. As with the Employer's policies about the contractual requirement that the Union give notice prior to visiting the hospital, the policies about access may also have been relaxed after Frates began her employment.

But Frates testified only as to her policies; she did not testify as to what SEIU's practice was during the prior election critical period. There was no testimony about electioneering activity during the period between the withdrawal of the prior election petition and January 27, the start of the critical period herein. Perhaps the best testimony about the prior practice was the testimony of Jean Cronin. Cronin was SEIU's lead organizer in charge of the election campaign at Seton Medical Center. She testified that, with respect to the current election, she told SEW organizers that they were not to campaign in break rooms and that, if an employee asked a campaign-related question in a break room, they were to make an appointment to see the employee elsewhere. When asked why she gave that instruction, she said because her boss told her that was "the lay of the land" and because that was how the SErU did it in prior election campaigns; although she did not specifically include the prior election campaign at Seton Medical Center in her comments, that is the reasonable interpretation. She testified that, unlike Frates, she did not construe the term "union business" as utilized in Article 32(F) to include campaign activity.

I find that there is no evidence that the incumbent union has been permitted to engage in electioneering activity in the past during its visits to break rooms at the Employer's facility. This finding is based primarily on the direct meaning of Colleen Fewer's testimony, which I credit, the implied meaning of Jean Cronin's testimony, which I credit, and the absence of any testimony to the contrary about actual practices. There was no testimony that SEW engaged in electioneering activity in break rooms prior to the critical period herein. I further find that there is evidence of "historic limitation" on the contractual access provision, based on Fewer's

29

testimony. See West Lawrence, supra at 10 12 n. 3. As stated above, Frates' testimony does not contradict this, as it refers only to her policies, not the practice. Moreover, as was the case with Frates' prior notice policy and her change in policy regarding NUHW access to break rooms, there is no evidence that Frates ever communicated her policy changes to SEIU. Based upon the testimony of Jean Cronin, it is likely this change in policy was not communicated.

Whatever doubts might linger about the existence of "historic limitation" on what business might be conducted under Article 32(F), such doubts are dispelled by the Employer's no-solicitation policy. Petitioner's objections do not apply solely to the Employer's access policies but also to its solicitation and distribution policies. These policies, discussed above, are neutral on their face, and Frates testified that their content applied to both SEI-U and NUHW representatives. Thus, persons not employed by the Employer were prohibited from soliciting or distributing literature for any purpose on the Employer's premises. This policy is clearly a "historic limitation" prohibiting all non-employees, including representatives of the incumbent union, from soliciting employees, which would include electioneering activity. 27 An apparent or implied exception was made by the Employer herein for both unions to engage in such activity in public areas. It is clear, however, that the Employer discriminatorily applied such policies against NUHW regarding the solicitation of employees and the distribution of literature in the break rooms. Moreover, there was no evidence offered that any of the SEIU representatives who visited the break rooms during the pre-election period were "duly-authorized" within the meaning of Article 32(F). These representatives included not just the paid employees of SEIU but employees of Seton and affiliated hospitals on contractual unpaid leave such as Vallin and Quarles who accessed the break rooms fi7equently. To the extent that Article 32(F) should be given a very broad reading permitting any union business, that latitude applies only to the dulyauthorized field representative. In West Lawrence, the clause referred to the Union's Business Representative or the Union's designee, and it was clear that Lohlein was the Union's designee. Fewer testified that it was the practice of SEIU and the Employer that SEIU would notify the
2'

There is no indication in West Lawrence Care that the employer had a no-soticitation policy applicable to non-

employees.

30

Employer in advance of the identity of its duly-authorized Field Representative for purposes of union visitation under Article 32(F). This testimony was not disputed. Neither the Employer nor SEIU offered any evidence that its many representatives who frequented Seton Medical Center on almost a daily basis during the critical period were duly-authorized, 28 with the possible exception of Rachel Zamar.

Accordingly, I do not believe, for the reasons stated above, that West Lawrence applies herein to override the longstanding Board policy requiring employer neutrality in the face of competing union claims under Section 9(a) of the Act.

Finally, even if West Lawrence Care were to apply herein to prohibit any limitation on SEIU's access to break rooms to engage in any activity it wanted, all that would mean is that the Employer could not lawftilly restrict SElU's right to engage in electioneering activity in the break rooms. But the Employer would still be required to remain neutral in the election or, at least, not assist one of the two competing unions by means that are coercive or discriminatory. The simple solution for the Employer would have been to allow NUHW access to break rooms to engage in electioneering activity. The Employer did not contemplate this until the very end of the pre-election period and then, remarkably, did not inform NUHW of this change in policy, thus effectively restricting NUHW's access during the entire critical period. For all the reasons discussed above in this section and on the basis noted below in the Analysis section, recommend that the Board sustain Objection Nos. 21-23.

8. Objection No. 24

28

April 22, 2010, relating to Seton Medical Center. This memorandum pertained to unfair labor practice charges filed by NUHW against the Employer that blocked the earlier representation case proceeding. However, there are some interesting things in the memorandum. One is a reference to September 28, 2009, letter from the Employer to employees, in which the Employer states: "In order to avoid any confusion about what individuals are authorized to be present in the hospital to conduct union business, we have been authorized by SEIU-LTHW to provide you with the names of duly authorized ... representatives. Other than [those listed above], no other individuals have the right to be in non-public areas of the hospital." What is notable about this is that no similar letter was introduced in this hearing about who was a "duly-authorized" representative for SEfU during the critical period herein.

As

stated above, Ireceived into evidence an Advice Memorandum dated

31

Petitioner alleges that the Employer provided employee supporters of SEfU greater access to conduct electioneering activities in its facilities than access granted employee supporters of NUHW. The only employee supporter whom NUHW addresses in this objection is Rudy Vallin. I have found that Vallin was properly granted union leave pursuant to the Agreement currently in place. Petitioner offered testimony that Vallin appeared to be engaged in electioneering activity in break rooms, but Vallin and Cronin plausibly explained that he was involved in contract and representational matters. I find that there is insufficient evidence to conclude that Vallin engaged in electioneering activity in break rooms. Accordingly, I recommend that the Board overrule Objection No. 24.

9. Objection Nos. 25-27 These objections go to the bulletin boards assigned under the Agreement for SEIIJ use. Petitioner presented evidence, and I find, that the Employer knowingly permitted SEW to post campaign materials in the bulletin boards while not permitting NUHW to post campaign materials, whether in the SEIU's assigned bulletin boards or on other bulletin boards or on walls. One bulletin board in particular was located so that the SEW campaign material would have been readily observable in a locked glass container by all of the hospital's employees. Although I find that Petitioner has not established that the Employer removed NUHW campaign materials on a more than de minimis basis, the real issue herein is the Employer's tolerance of posting of campaign materials by SEIU. N-LJHW offered limited evidence that the 35 unenclosed bulletin boards were used in the past for personal postings by employees and for other reasons unrelated to SEIU. No evidence was offered that any bulletin board had been used in the past by SEIU for electioneering activity. SEW relies on West Lawrence Care to contend that the Employer must continue to honor its contractual provisions regarding bulletin boards to allow SEIIJ to post campaign materials on bulletin boards. Assuming arguendo that case applies to bulletin boards, the contractual provisions relating to bulletin boards are not broadly stated as is the contractual access provision. Moreover, there is no evidence about a practice permitting SEW to post campaign materials on the bulletin boards. Accordingly, West Lawrence Care does not avail SEIU herein.

32

The Employer relies on ATCIVancom of California,L.P., 338 NLRB 1166 (2003). In that case, the employer barred the union from its contractual bulletin board upon the filing of a decertification petition and the subsequent intervention of a rival union. There was no discussion of an employer's neutrality obligations in the face of competing union claims nor was there any discussion of past practice regarding the content of bulletin board notices. In these circumstances, I find ATC of no relevance to the issues presented herein.

For the reasons discussed above, the reasons discussed above with respect to Objection Nos. 21-23, and on the basis noted below in the Analysis section, I recommend that the Board sustain Objection No. 25 and Objection No. 27 because the Employer discriminated in favor of SEW in allowing the posting of campaign materials. I recommend that the Board overrule Objection No. 26 as not supported by evidence. 29

D. Analysis

I have found that the Employer engaged in objectionable conduct by discriminating in favor of SEIU in the application of its access, solicitation, distribution, and bulletin board policies at Seton Medical Center. The Board's decision in HarborsideHealthcare,Inc., 343 NLRB 906 (2004), provides an appropriate analytical framework to evaluate whether an employer's conduct in favor of one of two competing unions breached the requisite laboratory conditions for a fair election. In Harborside,the Board first looked at whether the prounion conduct reasonably tended to coerce or interfere with the employees' exercise of free choice in the election. This initial inquiry included the nature, extent, and context of the conduct in question. The Board then looked to whether the conduct materially affected the outcome of the election, based on such factors as the margin of victory in the election; whether the conduct at issue was widespread or isolated; the timing of the conduct; the extent to which the conduct became known; and the lingering effect of the conduct. Id. at 909.

'9 To the extent that evidence in support of Objection No. 26 overlaps with evidence Objection No. 27, that evidence is considered with respect to Objection No. 27.

offered

in support of

33

Here, the electioneering conducted by SEW and the solicitations made by SEW in break rooms would have been known to most hospital employees. The posting of SEIU campaign materials in glass-enclosed locked bulletin boards would have been well known to all hospital employees. The restriction of NLTHW to public areas and the contrasting access of SEIU to break rooms in order to campaign would have been well known to most hospital employees. Hospital employees would have understood that the aforesaid disparities could have occurred only because the Employer permitted them. Employees would have reasonably concluded that the Employer was favoring SEI-U. From that employees could have perceived a need to align themselves with the favored union thereby destroying the requisite laboratory conditions. This first inquiry is easily met.

The second inquiry, whether the conduct materially affected the outcome of the election, is even easier. Out of 591 votes cast, 301 were cast of SEI-U and 271 were cast for NUHW. A swing of 16 votes would have resulted in the selection of NUHW as the bargaining representative; a swing of 6 votes would have resulted in a runoff election. Six votes was I% of the total votes cast. The conduct was widespread and was pervasive throughout the critical period. It would have been known to most employees, and it would have lingered. Accordingly, I find that the objectionable conduct found herein materially affected the election results.

RECOMMENDATION Based on the above, I recommend that Objection Nos. 21-23, 25, and 27 be sustained and that Objection Nos. 1-8, 11, 13, 16-17, 19, 24, and 26 be overruled. Accordingly, I recommend that the Board set aside the election in Case 20-RC-73334 be set aside and direct that a new election be held. I recommend that the representation proceeding be remanded to the Region

Director of Region 20 for the purpose of conducting a second election.

Pursuant to the provisions of Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, within 14 days from the date of issuance of this Report, either party may file with the Board in Washington, D.C. and original and eight copies of exceptions thereto. Exceptions must be received by the Board by January 31, 2013. Immediately upon the filing of such exceptions, the party filing same shall serve a copy thereof upon the other parties and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board may adopt this Recommended Decision.
30

34

Further, and in accordance with Lujkin Rule Co. and Fieldcrest Cannon,Inc., 327 NLRB 109 n. 3, (1998), 1 recommend that the following notice be issued in the Notice of Second Election in Case 20-RC-73334. NOTICE TO ALL VOTERS The election held on March 21, 2012, was set aside because the National Labor Relations Board found that certain conduct of Seton Medical Center interfered with the employees' exercise of a free and reasoned choice among employees in the following unit: All full-time and regular part-time and per them employees, and limited parttime employees employed by the Employer at its facilities located at 1900 Sullivan Avenue, Daly City, California (Seton Medical Center) and 600 Marine Blvd., Moss Beach, California (Seton Coastside) in the following classifications:

Bed Control Coord, Bed Control Lead, Central Serv Tech I, Central Serv Tech 11, Lead Central Service Tech, Centralized Scheduler, Console Operator, Cyto Tech SR, Env Svc Tecfh, Env Svc Tech Lead, Hospital Attendant, Linen Service Worker, Nursing Asst 1, Pre-Admissions Registrar, Pulmonary Functions Tech, Radiology Tech Asst, Respiratory Care Aide, Secretary, SNF Staff RN (Coastside), Lead SNF Staff RN (Coastside), Unit Coordinator, Unit Coordinator Sr, Vascular Tech 11, Waiter/Waitress, Admitting Coord, Anesthesia Tech, Anesthesia Tech Senior, Cardiology Tech, Cardiopulmonary Rehab Aide, Cath Lab Service Tech, Cert Nursing Assistant, Client Service Rep, Clinical Lab Tech, Cook, Cyto. Tech, Data Entry Clerk, Dietary Clerk, Dietary Clerk 11, Driver, Echo Tech 1, Lead Echo Technician 11, ER Tech, File Clerk, FilmFile Clerk Lead, Food Service Aide, Lead Food Services, Histo Tech, SR Histo Tech NB, Instrument Tech, Inventory Clerk, Lab Asst I/Clerk, Lab Asst II/Phlebotoniist, Lab Asst III/Phlebotomist + Process, Library Assistant, LVN, LVN Senior, Mail Clerk, Med Rec Clk 11, Med Rec Clerk 111, Med Transcriber, Lead Med Transcriber, Medical Assistant, Monitor Tech, MRI Tech, Lead MRI Tech/CT Tech, Neurology Tech, Nuc Med Asst, Nuc Med Tech, Admitting Officer Lead, Central Serv Aide Tech 1,

35

Central Serv Aide, Tech 11, Central Supply Clerk, Cook Lead, Department Secretary, Dietary Tech, Histo Tech Lead, Host/Hostess, Housekeeping Aide, Housekeeping Aide Lead, Linen Room Worker, Med Rec Clk 1, Med Rec Clk II/Med Rec Clinic Clerk, Nuc Med Tech Lead, Nursing Asst/Hosp Attendant/Pt Care Attd, OB Tech, PBX Operator, Radiation Therapist Lead, Receptionist/Information Clerk/Intermed Clerk, Registrar/Admitting Officer, RN Seton Coastside, Ultrasound Technician, Ultrasound Tech III Lead, Echo Tech II (RDMS), Office Assistant, Office Coord, Office Coordinator-WNHS, Office Coord Senior, Office Coordinator Senior-Vv'NHS, OR Attendant, OR Tech I, OR Tech 11, OR Tech, Senior, Pathology Asst, Patient Coordinator NB, Pharmacy Tech, Pharmacy Tech, Sr, PT Aide, PT Asst, Rad Tech 1,Rad Tech II, Rad Tech III, Rad Tech III Lead, Rad Tech IV, Rad Tech/CT Tech, Radiation Therapist, Radiology Aide, Radiology Asst, RCP I (Unreg), RCP 11 (Reg), RCP 111, Receptionist, Registrar, R.O.I. Tech, Restorative Aide (CNA), Restorative Aide (not CNA), Simulation Therapist, Staffing Clerk, Storekeeper, Transporter, Ultrasound Tech 1, Ultrasound Tech 11, Ultrasound Tech 111; excluding all other employees, office clerical employees, professional employees, confidential employees, guards and supervisors as defined in the Act. Therefore, a new election will be held in accordance with the terms of this notice of election. All eligible voters should understand that the National Labor Relations Act, as amended, gives them the right to cast their ballots as they see fit and protects them in the exercise of this right, free from interference by any of the parties. Dated at San Francisco, California: January 17, 2013.

Isl DavidB. Reeves David B. Reeves, Hearing Officer

36