Kwik Care Ltd. v. N.L.R.B.
| Decision Date | 07 May 1996 |
| Docket Number | I,AFL-CI,No. 95-1155,95-1155 |
| Citation | 82 F.3d 1122 |
| Parties | 152 L.R.R.M. (BNA) 2204, 317 U.S.App.D.C. 318, 64 USLW 2715 KWIK CARE LTD., d/b/a VIP Health Care Services, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local 670, Retail, Wholesale and Department Store Union,ntervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Roger S. Kaplan, Woodbury, NY, argued the cause and filed the briefs for petitioner. Mark R. Sussman, N Miami Beach, FL, entered an appearance.
Marion L. Griffin, Attorney, National Labor Relations Board, argued the cause for respondent, with whom Linda R. Sher, Associate General Counsel and Aileen A. Armstrong, Deputy Associate General Counsel, Washington, DC, were on the brief.
Richard M. Greenspan was on the brief for intervenor.
Before: WALD, WILLIAMS and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Following a mail-in election during which a unit of home health aides voted in favor of union representation, the National Labor Relations Board ("NLRB" or "Board") certified the elected Union, Local 670, Retail, Wholesale and Department Store Union ("Union"), as the unit's collective bargaining representative. When the employer, Kwik Care Ltd., d/b/a VIP Health Care Services ("employer" or "VIP"), refused to bargain with the unit, the Union filed an unfair labor practices charge with the Board. Finding that VIP had violated § 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 151, et seq., ("NLRA" or "Act"), the Board ordered VIP to bargain with the Union. Kwik Care Ltd., 316 N.L.R.B. No. 98, 1995 WL 79319 (Feb. 24, 1995) ("Final Order"); Appendix ("A-") 297.
VIP now petitions this court for review, requesting that we deny enforcement of the Board's order because the mail-in election was improper. Specifically, the employer claims: (1) that the Board abused its discretion in ordering a mail-in election rather than a manual one; (2) that even if the Board were justified at the outset in ordering the election-by-mail, it should have rejected the results based on election complications; and (3) that the Board should have invalidated the vote in favor of representation based on the Union's distribution of two improperly designated sample ballots which could have misled voters into thinking that the sample ballot represented the official position of the Board rather than propaganda of the Union.
Given the specific characteristics of the bargaining unit eligible to participate in this election, we find that the Board acted well within its broad discretion when it ordered a mail-in election rather than a manual one. We also find that the Board properly determined that the Union's sample ballot constituted legitimate propaganda since it would not tend to mislead voters into thinking it had been produced by the Board. Accordingly, we deny the employer's petition for review and grant the Union's cross-application for enforcement of the Board's order.
The Union initially petitioned the NLRB in August 1993 to represent a unit of home health care workers employed by VIP. Those employees who provide personal living assistance or health care to patients in adult care facilities or in the patients' homes were eligible to vote in the representation election. These workers live and work at locations scattered around New York, and are supervised out of five VIP offices in Westchester, Rockland, Nassau, Queens and the Bronx. Although weekly paychecks are disbursed to workers (or designated family members or co-workers) in the company offices one day each week, a significant number of the employees (14%, by the employer's estimate) work either 24-hour shifts or 12-hour shifts during daylight hours and cannot make special trips to the office on payday. As an alternative to in-person check pick-ups, the employer mails payment to these long-shift workers and any other employees who elect to receive their checks by mail. According to the employer, approximately 20% of the unit employees receive their checks by mail. Testimony of Cynthia Rosen, VIP Director, at 93 (Sept. 8, 1993) ("Rosen Testimony"); A-46. Of the remaining 80% of unit workers, whose paychecks are picked up each week in the VIP offices, the record is unclear how many send a friend or relative as an emissary and how many make the trek in person. The employer acknowledged that workers in group homes will sometimes send just one person to retrieve all of the paychecks, id. at 126; A-68, and VIP can conclude only that "more than half" retrieve the paychecks themselves. Id. at 94; A-47.
The employer, urging a manual election, claimed that only 14% of the unit workers (those who work either 12- or 24-hour shifts) would have trouble making it into the offices to vote. Rosen Testimony at 99; A-52 ( ). Rosen testified that the employer would attempt to supply "replacement" workers for these employees, to allow them time to participate in the election, but could not, at the time of the hearing, guarantee coverage for all workers who might request it. Id. at 153; A-92. Rosen also opined that the employees working in group care facilities, many of whom send a representative to pick up their checks, would be able to travel to the offices to vote. "I know that some of the employees in the adult care facilities work fewer than eight hours," she testified. Id. at 138; A-80. Rosen's testimony, however, appears to have been based on the assumption that the employer considered any worker who had at least one hour off-duty during the time the polls would be open to be "able" to vote in a manual election. See id. at 96-102; A-49-55. For example, someone who worked a 12-hour shift at night would be deemed available to vote during the day. Id. at 100-01; A-53-54.
During her testimony, Rosen also noted that a subset of employees might work other jobs when not on duty for VIP, and that some have reported that their availability is limited due to "other responsibilit[ies]." Id. at 114-15; A-63-64. Additionally, she testified that many of the workers depend on public transportation for their mobility. Id. at 126; A-68.
Noting the scattered location of the workers' job sites, and the difficulty many employees might face traveling to the offices for a manual election, the Board's Regional Director determined over VIP's objections that the use of mail-in ballots would offer the best opportunity for the maximum number of employees to cast a vote. Kwik Care Ltd., 29-RC-8198, Decision & Direction of Election, at 12 (Dec. 14, 1993) ("Direction of Election"); A-103, 114.
On February 8, 1994, the Board sent each of the 860 eligible VIP employees a mail ballot kit which, by agreement of the parties, was printed in four languages (English, Spanish, Russian, and Haitian/Creole). Each kit contained--in all four languages--a Notice of Election, a ballot, and detailed instructions on how to cast a vote. The Notice contained a warning (in large, bold, capital letters on the English and Spanish versions) informing voters that the Board would remain a neutral party in the election:
WARNING: THIS IS THE ONLY OFFICIAL NOTICE OF THIS ELECTION AND MUST NOT BE DEFACED BY ANYONE. ANY MARKINGS THAT
YOU MAY SEE ON ANY SAMPLE BALLOT OR ANYWHERE ON THIS NOTICE HAVE BEEN MADE BY SOMEONE OTHER THAN THE NATIONAL LABOR RELATIONS BOARD, AND HAVE NOT BEEN PUT THERE BY THE NATIONAL LABOR RELATIONS BOARD. THE [BOARD] IS AN AGENCY OF THE UNITED STATES GOVERNMENT, AND DOES NOT ENDORSE ANY CHOICE IN THE ELECTION.
Notice of Election (emphasis in original); A-149.
The voting instructions informed the employees that they had to mark the appropriate box on the ballot (and that if they made any other markings, their ballot would not count) and sign the return envelope (if they failed to sign the envelope, their ballot would not count). The instructions also included a checklist that said:
YOUR BALLOT WILL BE VOID AND WILL NOT BE COUNTED UNLESS you:
1. Mark on the ballot only in the place provided for marking; do not identify yourself on the ballot.
2. Return the ballot in the same envelope which you received for that purpose.
3. Sign your name in your own handwriting on the outside of that envelope after the word "Signature," so that your name can be checked against the eligibility list.
Instructions (emphasis in original); A-L6. Additionally, the form stated that the ballots had to be mailed in time to be "RECEIVED" by the Board by March 8, 1994. Voters were instructed that if they had any questions about the election they should contact the Regional Director, whose address and telephone number were provided on the form.
The same day the Board sent out the voter kits, the Union mailed to all eligible workers a one-page letter and a sample ballot altered to show support for the Union. Kwik Care Ltd., 29-RC-8198, Supplemental Decision on Objections and Certification of Representation (Aug. 1, 1994), App. D, F ("Supp.Dec."); A-175, 209, 211. Each envelope bore the Union's name and return address, and contained the two unattached sheets of paper. The letter, which clearly designated the Union as its author, unquestionably constituted legitimate partisan propaganda urging support of the Union. The sample ballot, however, contained no facial reference to the Union, and the employer claims that it thus had the potential to mislead voters as to its origin.
The sample ballot resembled the official...
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