Enloe Medical Center Union Support

Including the First Administrative Law Judge and also the Three-Judge Board

STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.

Pursuant to a notice of hearing in this matter was held before me in Chico, California, on August 10, 11, and 12, and November 2, 3, and 4, 2004.

The charge in Case 20–CA–31806–1 was filed on March 21, 2004 by Health Care Workers Union, Local 250, Service Employees International Union, AFL–CIO (Union).

An amended charge was filed by the Union on May 28, 2004.

On May 28, 2004, the Regional Director for Region 20 of the National Labor Relations Board (Board) issued a complaint and notice of hearing alleging a violation by Enloe Medical Center (Respondent or Employer) of Section 8(a)(1) of the National Labor Relations Act (Act). The Respondent, in its answer to the complaint, denies that it has violated the Act as alleged.

On July 22, 2004, the Acting Regional Director for Region 20 of the Board issued a report on challenged ballots, objections to elections, order consolidating cases, and notice of hearing in the captioned matters, consolidating the representation cases with the unfair labor practice proceeding.

The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from counsel for the General Counsel (General Counsel), counsel for the Union, and counsel for the Respondent.

Upon the entire record, and based upon my observation of the witnesses and consideration of the briefs submitted, I make the following…

SUMMARY and CONCLUSION

I conclude THE EVIDENCE DOES NOT DEMONSTRATE A REASONABLE DOUBT AS TO THE FAIRNESS AND VALIDITY OF THE ELECTION. ¹⁷

This was an extended and logistically complex election in which voters from three separate units were voting at the same time during a total of 14 voting sessions over a 2-day period at five different locations; and during these voting sessions the polls were open for a total of some 30 hours to accommodate the schedules of 985 eligible voters. The parties agreed to this procedure.

The evidence presented by the Employer shows that during one voting session a Board agent knowingly gave all challenged voters white ballots regardless of their voting unit, and explained to an election observer who questioned this voting procedure that it did not present a problem since the ballots were placed into identifiable challenge envelopes and would end up being counted in the correct voting unit after the challenges were resolved. ¹⁸

This is entirely consistent with the further evidence presented by the Employer that incorrect white ballots, and only white ballots, were removed from challenge envelopes during both the original and supplemental counting of the ballots. As noted, since the challenge ballot envelopes contained the name and unit of the voter, the fact that the voter voted on the wrong color ballot could have had no effect on the election results.

The Employer's evidence also shows that at one session, during a 30 to 45-minute period, the Board agent conducting that session seemed frustrated because of the chatter and irregular lines formed by some 20 voters in the room, as well as the conversation among some election observers. However, the Employer's election observer testified that during this period, as well as during the remainder of the session, she observed the Board agent giving the correct color ballot to each voter.

To summarize, there is no credible evidence that any business office clerical unit voters or technical unit voters cast unchallenged white service unit ballots, or that any service unit voters cast unchallenged green technical unit or pink business office clerical unit ballots.

Thus, THE EVIDENCE PRESENTED BY THE EMPLOYER DOES NOT SHOW THAT ANY ACTION OF ANY BOARD AGENT RESULTED IN ANY VOTER CASTING A BALLOT IN THE WRONG UNIT.

Accordingly, I find that no reasonable doubt exists as to the fairness and validity of the election, and that the supplemental tally of ballots in the service unit accurately reflects the voters' intent. I RECOMMEND THAT THE EMPLOYER'S ELECTION OBJECTIONS BE OVERRULED, AND THAT THE RESULTS OF THE ELECTION IN THE SERVICE UNIT (CASE 20–RC–17938) BE CERTIFIED.

CONCLUSIONS OF LAW AND RECOMMENDATIONS

1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

3. The Respondent has violated Section 8(a)(1) of the Act as found herein.

4. It is recommended that the Union's election objections be overruled, and that the results of the election in the technical unit (Case 20–RC–17939) be certified.

5. It is recommended that the Employer's election objections be overruled, and that the results of the election in the service unit (Case 20–RC–17938) be certified.

THE REMEDY

Having found that the Employer has violated and is violating Section 8(a)(1) of the Act, I recommend that it be required to cease and desist therefrom and in any other like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. I shall also recommend the posting of an appropriate notice, attached hereto as "APPENDIX." On these findings of fact and conclusions of law and on the entire record, I issue the following recommended...

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Enloe Medical Center, Chico, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. *

The Respondent, Enloe Medical Center, Chico, California, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Requiring employees to remove or cover union identification badges that state "Ask me about our union," or "Ask me about SEIU."

(b) Prohibiting employees from placing union literature in the break room. *

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action, which is necessary to effectuate the purposes of the Act.

(a) Within 14 days after service by the Region, post at its facility copies of the attached notice marked "APPENDIX." Copies of the notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted immediately upon receipt thereof, and shall remain posted by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

(b) Within 21 days after service by the Regional Office, file with the Regional Director for Region 20 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

Dated, February 14, 2005

NOTICE TO EMPLOYEES from ENLOE MEDICAL CENTER to be POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice:

FEDERAL LAW GIVES YOU THE RIGHT TO:

• Form, join, or assist a union;
• Choose representatives to bargain with us on your behalf;
• Act together with other employees for your benefit and protection;
• Choose not to engage in any of these protected activities.

WE WILL NOT require you to remove or cover union identification badges that state "Ask me about our union," or "Ask me about SEIU."

WE WILL NOT prohibit you from placing union literature in the breakroom.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above [guaranteed by Section 7 of the Act].

ENLOE MEDICAL CENTER

IT IS CERTIFIED that a majority of the valid ballots in Case 20–RC–17938 have been cast for Health Care Workers Union, Service Employees International Union, Local 250, and that it is the exclusive collective-bargaining representative of the employees in the following appropriate unit:

All full-time and regular part-time service employees, including:

• Anesthesia Techs,
• Cancer Registrars,
• Cardio Cath Lab Aides,
• Cardiovascular Techs (non-invasive),
• Case Management Assistants,
• Certified Cardiovascular Techs (non-invasive),
• Chart Analysts,
• Clerk/Technicians,
• Clinic Techs (except for the Clinic Techs working in the Employer's Los Molinos Clinic, who are eligible to vote subject to challenge),
• CNAs,
• CNAs-HHAs,
• CNAs/Transporters,
• Computer Operators employed by Enloe Medical Center at its current Butte County, California, facilities,
• Data Analysts,
• Department Clerks (non-business office),
• Distribution Clerks,
• Distribution Couriers,
• E.D. Techs,
• EMS Communication Specialists,
• Facility Workers,
• G.I. Techs,
• Homemakers,
• Information Clerks,
• Lab Assistants,
• Lead Distribution Clerks,
• Lead Information Desk Clerks,
• Lead Patient Support Clerks,
• Lead Sterile Processing Techs,
• Liaisons,
• Medical Records Clerks,
• Mental Health Workers,
• Monitor Techs,
• Nursing Assistants I & II,
• OR Aides,
• Ortho Techs,
• Patient Access Reps,
• Patient Monitors,
• Patient Support Clerks (non-business office) (except for the Patient Support Clerks working in the Employer's Los Molinos Clinic, who are eligible to vote subject to challenge),
• Perinatal Techs,
• Personal Fitters,
• Pharmacy Techs,
• Receptionists/Van Drivers,
• Rehab Aides,
• Rehab Technicians,
• Repair Technicians,
• RT Equipment Techs,
• Schedulers,
• Sterile Processing Techs,
• Support Group Facilitators,
• Surgical Supply Techs,
• Switchboard Operators,
• Systems Technicians,
• Technologist Assistants,
• Transcriptionists I & II,
• Transporters,
• Unit Secretaries/CNAs,
• Unit Secretaries/NAIs,
• Van Drivers,
• Van Drivers/Techs,
• Warehouse Technicians, and
• Workers Comp Liaisons.

NOTATIONS

17 — Indeed, since all three elections were conducted simultaneously, a reasonable doubt concerning the fairness of one election would necessarily raise the same reasonable doubt as to the fairness of all three elections. In that event it appears that the

Board, of its own volition, in order to insure the integrity of its election processes, has the authority to invalidate all three elections. It should be recalled that the supplemental tally of ballots in the business office clerical unit showed that the final vote count was 64 to 64 and that therefore the Union did not receive a majority of the valid votes. Thereafter, the Employer withdrew its objections to that election.

However, the Employer presented testimony in this proceeding from three business office clerical unit employees that they were given the wrong color ballots by Board agents, and the Employer continues to rely upon such evidence in support of its position that the election in the technical [service] unit should be overturned and a new election conducted.

18 — I conclude the Board agent's method of handling challenged ballots does not raise a reasonable doubt as to the fairness and validity of the election; it amounted to no more than harmless error and could not have affected the results of any of the three elections. [Allied Acoustics, 300 NLRB 1181 (1990); Polymers, Inc., 174 NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969), cert. denied 396 U.S. 1010 (1970).] While the Employer appears to speculate that perhaps this Board Agent made other, more serious mistakes that were in fact material to the outcome of the election, the Employer proffered no evidence to support such speculation.

* The statements above [in blue] are statements added by the three-judge National Labor Relations Board in Washington, DC:

   Robert J. Battista, Chairman

   Wilma B. Liebman, Member

   Peter C. Schaumber, Member

   Dated, Washington, D.C. August 27, 2005

The statements above [in black] are the statements by the original judge on February 14,2005.

This presentation above is accurate, but summarized, with certain words and phrases emphasized by the compiler of this paper. For an official, unaltered copy of the NLRB judges' decision, go to

http://www.nlrb.gov/nlrb/shared_files/decisions/345/345-54.pdf

or see a shop steward at Enloe, or contact the union at (530) 891-5890.

LAWYERS PRESENT

Kathleen C. Schneider, Esq. and Ashok Carlos Bodke, Esq., for the General Counsel.

Laurence R. Arnold, Esq. (Foley & Lardner LLP), of San Francisco, California, for the Respondent/Employer.

Robert J. Wenbourne, Esq. (of Foley & Lardner LLP), of Sacramento, California, for the Respondent/Employer.

Bruce A. Harland, Esq. (Weinberg, Roger & Rosenfeld), of Oakland, California, for the Union.