NLRB v. Mar Salle, Inc.

• Decision Date: 18 February 1970
• Docket Number: No. 22621.,22621.
• Citation: 425 F.2d 566
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAR SALLE, INC., d/b/a Mar Salle Convalescent Home, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

425 F.2d 566 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAR SALLE, INC., d/b/a Mar Salle Convalescent Home, Respondent.

No. 22621.

United States Court of Appeals, District of Columbia Circuit.

Argued September 17, 1969.

Decided February 18, 1970.

COPYRIGHT MATERIAL OMITTED

Mrs. Abigail Cooley Baskir, Atty., National Labor Relations Board, with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, were on the brief, for petitioner.

Mr. John K. Pickens, Alexandria, Va., for respondent.

Before BAZELON, Chief Judge, and TAMM and ROBINSON, Circuit Judges.

TAMM, Circuit Judge:

This case comes before us on application of the National Labor Relations Board for enforcement of its order of October 29, 1968, against Mar Salle, Inc., pursuant to section 10(e) of the National Labor Relations Act (29 U.S.C. § 160(e) (1964)). A representation petition was filed by the Building Service Employees' International Union, Local 536, AFL-CIO, on February 5, 1968; the Union sought therein to organize the employees who worked in respondent's Washington, D. C. nursing home.

It was agreed prior to the hearing on the representation petition that all of the hourly-paid employees would be properly included in the unit appropriate for collective bargaining under the Act, and that they would therefore be eligible to vote in the election should one be conducted. It was further agreed that this group would include all licensed practical nurses, charge nurses, aides and orderlies, kitchen, housekeeping and maintenance employees, but that it would exclude registered nurses, the bookkeeper, dietician, and supervisors, as defined in the Act. (App. 5-6.) Respondent sought to include in the unit five switchboard operators, a medical secretary, and three admissions clerks. The Union contended that these three classifications were essentially office clerical employees and that they should be excluded from the election. (App. 6.)

In its decision and direction of election, the Board determined that the three challenged categories should be excluded from the unit. (App. 33-34 n.2.) Respondent filed a request for review of that decision on the ground that the three classifications had been erroneously excluded. (App. 36-42.) The Board denied the request as raising no substantial issues, except as to the three admissions clerks; as to them the Board amended the decision to allow them to vote in the election, subject to challenge. (App. 42.)

The election was conducted on April 2, 1968, and resulted in seventy-one votes for the Union and thirty-eight votes against, with five challenged ballots. (App. 49.) Respondent filed a timely challenge to the election, alleging misconduct on the part of the Union. (App. 43.)¹ This challenge was considered without a hearing and rejected by the Regional Director; the Union was therefore certified as the exclusive bargaining representative of the respondent's employees. (App. 49-53.)

On June 20, 1968, the Union filed a complaint with the Board, alleging that the respondent had refused to bargain with it despite the fact that it had been designated the exclusive bargaining representative by the Regional Director's certification of May 2, 1968. A complaint and notice of hearing were issued against the respondent on June 27, 1968, (App. 59), alleging an unfair labor practice under section 8(a) (5) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5) (1964).

Respondent's answer admitted that the Union had requested collective bargaining with respect to "rates of pay, wages, hours of employment and other conditions of employment," and further admitted that it had refused and continued to refuse to bargain with the Union, asserting as a justification of this refusal to bargain that the unit had been improperly designated and that the Union's action (see note 1 supra) was violative of the National Labor Relations Act and precluded a fair and impartial election. (App. 63.) The trial examiner granted the General Counsel's motion for summary judgment (App. 76) and recommended that the Board issue a cease and desist order precluding further evasion of collective bargaining on the part of respondent (App. 78-79); this order was adopted and issued by the Board (App. 83).

Of primary importance in our decision to grant or deny the Board's enforcement petition is a consideration of whether the summary judgment procedure used by the Board constitutes a denial of due process to the respondent. Incident thereto are considerations of whether the Board's unit determination was proper, and whether the Board properly rejected respondent's objections to the Union's pre-election conduct.

I. THE UNIT DETERMINATION

The Board has been given the responsibility for determining the appropriate unit by section 9(b) of the National Labor Relations Act.² After the Board has established the appropriate bargaining unit, the matter is beyond the power of review of the courts, unless the unit was unreasonably or arbitrarily constituted. Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 91 L.Ed. 1040 (1947); May Department Stores Co. v. NLRB, 326 U. S. 376, 380, 66 S.Ct. 203, 90 L.Ed. 145 (1945); Retail, Wholesale, & Department Store Union v. NLRB, 128 U.S. App.D.C. 41, 44-45, 385 F.2d 301, 305 (1967). As the Supreme Court has so appropriately stated it, the rule is that the determination of the appropriate unit

Is one for which no absolute rule of law is laid down by statute, and none should be by decision. It involves of necessity a large measure of informed discretion and the decision of the Board, if not final, is rarely to be disturbed. While we do not say that a determination of a unit of representation cannot be so unreasonable and arbitrary as to exceed the Board\'s power, we are clear that the decision in question does not do so. That settled, our power is at an end.

Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491-492, 67 S.Ct. 789 (1947).

After familiarizing itself thoroughly with the respondent's business, employees, and method of operation, the Board made a unit determination consistent with established precedent in the nursing home industry. (Decision and Direction of Election, App. 33 n.2) We note that the appropriateness of the unit was stipulated by the parties except as to the categories of admissions clerk, switchboard operator, and medical secretary. As to those categories it was only necessary for the Board to determine whether they could properly be deemed office clerical employees, for persons in that category have traditionally been placed in separate bargaining units from production, maintenance, and operating personnel.³ The Board had substantial reasons for determining that the employees in the three challenged categories were office clerical employees. It was found that the medical secretary is hourly rated and that she works normal daytime office hours under the direct supervision of the vice-president and secretary of the company at a duty station in the office.⁴ The five switchboard operators were found to work normal eight hour shifts at the counter in the main lobby, with no interchange of duties with those stipulated to be in the unit.⁵ Finally, the three admissions clerks were found to perform the essentially clerical function of interviewing patients who seek admission and recording admission data on duplicate file cards, with no interchange of duties with housekeeping, maintenance or patient-care employees.⁶ Accordingly, we find that the Board's decision in this regard is supported by substantial evidence and is free of arbitrary or irrational determination; we therefore affirm the Board's unit determination.⁷

II. OBJECTIONS TO PRE-ELECTION CONDUCT

Respondent also challenged the validity of the election and resulting designation of the bargaining unit on the basis of the Union's pre-election conduct. See note 1, supra. We recently reaffirmed our opinion that the election machinery which Congress has entrusted to the Board must be left for the most part to that body's expertise and discretion. International Bhd. of Elec. Workers v. NLRB, 135 U.S.App.D.C. 197, 417 F.2d 1144 (June 5, 1969), cert. denied sub nom. Presto Mfg. Co. v. NLRB, 396 U.S. 1004, 90 S.Ct. 556, 24 L.Ed.2d 496 (Jan. 13, 1970). We recognized therein that the "control of the election proceeding, and the determination of the steps necessary to conduct that election fairly are matters which Congress entrusted to the Board alone." NLRB v. Waterman Steamship Co., 309 U.S. 206, 226, 60 S.Ct. 493, 84 L.Ed. 704 (1940). In making that determination, which "should not be lightly set aside," Liberal Market, Inc., 108 N.L.R.B. 1481, 1482 (1954), the Board must follow the guidelines which it laid down for itself in Hollywood Ceramics Co., 140 N.L.R.B. 221, 224 (1962), which we cited with approval in the International Brotherhood of Electrical Workers case. That test requires essentially that

an election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party * * * from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election. * * * Ambiguities, like extravagant promises, derogatory statements about the other party, and minor distortions of some facts, frequently occur in communication between persons. But even where a misrepresentation is shown to have been substantial, the Board may still refuse to set aside the election if it finds upon consideration of all the circumstances that the statement would not be likely to have had a real impact on the election.

140 N.L.R.B. at 224 (emphasis added). See United Steelworkers of America v. NLRB, 129 U.S.App.D.C. 260, 263, ...