Melrose-Wakefield Hosp. Ass'n, Inc. v. N.L.R.B.

Decision Date21 February 1980
Docket NumberMELROSE-WAKEFIELD,No. 79-1324,79-1324
Parties103 L.R.R.M. (BNA) 2711, 88 Lab.Cas. P 11,887 HOSPITAL ASSOCIATION, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — First Circuit

Richard D. Armstrong, Jr., Boston, Mass., with whom Snyder, Tepper & Berlin, Boston, Mass., was on brief, for petitioner.

Allison Beck, Washington, D. C., with whom Allison W. Brown, Jr., Norton J. Come, Acting Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for respondent.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

A hospital here challenges a decision of the National Labor Relations Board that various pre-election acts and statements of a union attempting to become the collective bargaining representative for technical workers at the hospital did not so poison the atmosphere of the election that it should be set aside. For the reasons discussed herein we affirm the Board's conclusions and enforce its unfair labor practices order against the hospital.

The employer in this case, Melrose-Wakefield Hospital Association, Inc. (Hospital), is a private, non-profit medical care center. The employees in the collective bargaining unit are described as technical employees, a group of 208 workers including licensed practical nurses, some counsellors and a wide range of health care technicians. The union in this case, the Massachusetts Hospital Workers Union, Local 880 (Union), sought and received a Decision and Direction of Election from the Board's Regional Director. The Union won the election, held in September, 1978, by 93 to 76 votes; seven challenged votes were never counted. The Hospital thereafter filed with the Regional Director a long list of objections to the Union's campaign practices.

Under Board-mandated procedure, the Regional Director, upon receipt of complaints about the conduct of an election, pursues an investigation, assesses the validity of the objections and orders a hearing if the objecting party has raised "substantial and material factual issues", 29 C.F.R. § 102.69(c). Here, the Regional Director rejected all the Hospital's objections, found that no hearing was necessary and certified the Union as the exclusive collective bargaining representative of the technical employees. The Board refused to review the Regional Director's decision, finding that the Hospital's appeal raised no substantial issues.

Subsequently, the Hospital refused to bargain with the Union, concededly in order to generate an unfair labor practices order from the Board, which would permit judicial review of the disposition of the Hospital's objections to the Union's campaign practices. This order issued in May, 1979, and the Hospital filed a timely notice of appeal. The Board cross petitioned for enforcement of its order.

In seeking to overturn the Board's decision overruling the objections, the Hospital faces a heavy burden. Solon Mfg. Co. v. N. L. R. B., 544 F.2d 1108, 1111 (1st Cir. 1976). The Board has wide discretion in setting standards for the conduct of representation elections, N. L. R. B. v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946), 1 and its rulings on the effect of a particular campaign practice will be set aside only if they are an abuse of discretion. N. L. R. B. v. Golden Age Beverage Co., Inc., 415 F.2d 26 (5th Cir. 1969); N. L. R. B. v. O. S. Walker Co., Inc., 469 F.2d 813 (1st Cir. 1972). Bearing this in mind we address the Hospital's contentions. Its objections relate to alleged misstatements by the Union and miscellaneous other campaign practices which are said to have impaired the employees' freedom of choice.

Misrepresentations

The Board has adhered to different standards over the years for evaluating what range of misstatements will so mar an election that its results must be set aside. However, in General Knit of California, Inc., 239 NLRB No. 101, 1977-78 NLRB Dec. (CCH) P 15,317 (1978), the Board clearly reembraced the once discarded rule of Hollywood Ceramics Co., Inc., 140 NLRB 221 (1962). 2 Applying this rule, the Board will set aside an election only when there is (1) a substantial misrepresentation of a material fact, (2) made by one with special knowledge of true facts, (3) communicated so shortly before the election that the other party has no opportunity to correct it, and (4) involving facts about which the employees are not in a position to know the truth. Trustees of Boston University v. N. L. R. B., 575 F.2d 301, 308 (1st Cir. 1978); Peerless of America, Inc. v. N. L. R. B., 576 F.2d 119, 123 (7th Cir. 1978). The Hollywood Ceramics policy contemplates that only a narrow range of campaign propaganda and misrepresentations require Board intervention; most exaggerations and misstatements are left to be countered or corrected in the give and take of a robust campaign. The Board confines its sanction to those statements that appear to have unfairly affected the outcome of the election for two reasons. First, the Board believes that demanding a greater purity of campaign declamation would be unrealistic and, perhaps, paternalistic. See General Knit of California, Inc., supra, 1977-78 NLRB Dec. (CCH) at 28,617-18. Second, a more searching official scrutiny of campaign conduct would afford losing parties too ample an opportunity to gain delay by litigating objections. See id. at 28,620. Our task as a reviewing court is not to evaluate the merit of the Board's policy, the development of which is committed to their expertise, but merely to ascertain whether the agency abused its discretion in applying the standard to particular facts.

The first group of alleged misrepresentations consists of "libellous and slanderous misstatements" about Hospital management and their handling of funds. The Hospital points first to a Union leaflet which contrasted the employees' ability to vote out corrupt union officials with their inability to rid themselves of "corrupt or irresponsible hospital management". The petitioner argues that this leaflet falsely cast it as a "lawbreaker". The Regional Director properly overruled this objection because the employer had ample time to respond and because the message essentially praised the safeguards of union democratic procedures rather than attacked management. This statement is well within the permissible give and take of campaign propaganda.

The Hospital further contends that oral denigrations made in three telephone calls several weeks before the election tainted the voting. Two calls came from a Union official. She suggested to employees that the Hospital could manipulate its accounts to mask funds as a strategy in wage negotiations and, also, that the Hospital had given privileges, such as lockers and parking places, to selected employees. The Regional Director overruled objections based on these calls because the caller had disclaimed any special knowledge of the issues, and admitted she had not been to the Hospital recently and was merely giving her opinion. Under Hollywood Ceramics, such nonauthoritative statements are seen as leaving the employee free to form his own evaluation and are, therefore, permissible. See Trustees of Boston University v. N. L. R. B., supra, at 308. Compare N. L. R. B. v. A. G. Pollard Co., 393 F.2d 239, 241-42 (1st Cir. 1968) (apparent special knowledge sufficient because degree of employee reliance determinative).

Another employee was telephoned by an unknown person who claimed that the Hospital president had been indicted for Medicare fraud and that management improperly juggled Hospital funds. The Regional Director discounted the impropriety of the statements because they could not be attributed to the Union. Under settled law, non-party statements require the setting aside of the election only when they are shown to have created such an atmosphere of fear and coercion that free choice has become impossible. E. g., Manning, Maxwell and Moore, Inc. v. N. L. R. B., 324 F.2d 857, 858 (5th Cir. 1963). Stricter regulation of non-party statements would punish the prevailing party in the election for events beyond its control, N. L. R. B. v. Griffith Oldsmobile, Inc., 454 F.2d 867, 870 (8th Cir. 1972), and give more importance to such statements than employees are likely to give, N. L. R. B. v. Staub Cleaners, Inc., 418 F.2d 1086, 1088 (2d Cir. 1969), cert. denied, 397 U.S. 1038, 90 S.Ct. 1357, 25 L.Ed.2d 649 (1970). Suffice it to say that there was no showing that this single telephone message imbued the election atmosphere with fear.

The Hospital next complains about a letter distributed by the Union, wherein it is claimed that the Union had never "fired, tried, or punished a member for crossing a picket line." (The Hospital obviously takes the view that such a relaxed, not to say lax, view of picket line discipline would appeal to workers.) The Hospital presented to the Regional Director another Union leaflet which had publicly exposed a member for crossing a picket-line; the Hospital alleges that this was severe punishment. The Regional Director was unimpressed by this objection. He ruled that the Union's boast, while equivocal, was not such a "gross misrepresentation", as to transcend acceptable campaign overstatement and become a ground for invalidating the election. See Hollywood Ceramics, supra, at 223-24. We think this judgment was reasonable and within the deference afforded the Board's expertise.

This same observation is applicable to the Hospital's objections to the same letter's railings against the Hospital's campaign tactics and the Union's magnification of the benefits conferred on employees by the collective bargaining process. Employees are fully capable of evaluating such campaign propaganda for what it is worth, see Solon Mfg. Co. v. N. L. R. B., 544 F.2d...

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