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Hall-Brooke Hospital v. National Labor Relations Board

decided: March 31, 1981.


Petition to review and set aside an order of the National Labor Relations Board which held the employer in violation of Sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), 158(a)(5) (1976), for refusing to bargain with a certified employee representative and ordered the employer to bargain upon request by the union. The Board cross-applies for enforcement of its order. The employer's petition is denied; the Board's application for enforcement of its order is granted.

Before Lumbard, Van Graafeiland and Kearse, Circuit Judges.

Author: Lumbard

Hall-Brooke Hospital, a division of Hall-Brooke Foundation, Inc., petitions us to deny enforcement of an order of the National Labor Relations Board dated July 10, 1980, requiring Hall-Brooke to bargain with Connecticut Health Care Associates ("the Union") as the exclusive bargaining representative of an approved unit of Hall-Brooke's employees. The Board cross-petitions for enforcement of its order. We deny Hall-Brooke's petition and grant the Board's application for enforcement of its order.


On January 5, 1979, the Union filed a representation petition with the Board seeking certification as the collective bargaining representative of Hall-Brooke's non-supervisory employees.*fn1 Pursuant to a stipulation by the parties, the Regional Director conducted an election on March 8, 1979 to determine whether the Union was the desired representative of the bargaining unit. The Union won the election by a vote of 27 to 18.

Immediately following the election, Hall-Brooke filed objections with the Board, including an objection that the Union had issued campaign literature that had created the impression that the Board endorsed the Union's position in the election. The material objected to was a three-page leaflet which the Union had mailed to the eligible voters. The first page of the leaflet was a reproduction of a portion of the Board's official election notice entitled "Rights of Employees," which described various employee rights protected by the National Labor Relations Act (NLRA) and listed various employer practices which are prohibited and may cause an election to be set aside. The notice, near the bottom, states: "The National Labor Relations Board as an agency of the United States Government does not endorse any choice in the election." The name and official seal of the Board appear at the very bottom.

The second two pages of the leaflet consisted of a series of typewritten questions and answers which were favorable to the Union's position. At the conclusion of the questions and answers were the words "March 8th-Vote Yes for CHCA!" Under that were the words "Your Committee to Elect CHCA." At the very bottom of the last page was the full name of the Union and its address.

Following an administrative investigation of Hall-Brooke's objections, the Board's Acting Regional Director issued a report that found, as to the objection relevant here, that "the document in issue did not compromise the Board's neutrality nor give the impression of Board endorsement" of the Union. The report therefore recommended that the Board overrule the objections and certify the Union. Hall-Brooke filed exceptions to the report, but the Board, after consideration by a three-member panel, adopted the Regional Director's findings and recommendations. One member of the panel dissented. The Union was therefore certified as the exclusive bargaining representative.

In October of 1979, the Union attempted to bargain with Hall-Brooke. Hall-Brooke, however, chose not to bargain with the Union in order to obtain judicial review of the certification decision.*fn2 The Board's general counsel thereupon issued a complaint against Hall-Brooke for violations of sections 8(a)(1) and (5) of the NLRA, 29 U.S.C. §§ 158(a)(1), 158(a)(5) (1976), for refusing to bargain with a certified representative. In its defense, Hall-Brooke raised the same objections to the Union's certification as before. The matter came before the same three Board members who had initially certified the Union. Once again, by a 2-1 margin, the Board held for the Union and ordered Hall-Brooke to bargain. Hall-Brooke then petitioned this court for review.


Hall-Brooke argues that the Board erred in failing to set aside the election because the circulated leaflet tended to mislead employees into believing that the Board supported the Union's position, thereby destroying the "laboratory conditions" necessary to ensure a fair representation election. Cf. General Shoe Corp., 77 NLRB 124, 127 (1948). Moreover, Hall-Brooke argues that in so doing the Board acted contrary to its own precedent. In reviewing the Board's action, we are mindful that the Board is entrusted with broad discretion in creating and enforcing standards to ensure fair representation elections. See, e. g., NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S. Ct. 324, 327, 91 L. Ed. 322 (1946); NLRB v. Waterman S. S. Corp., 309 U.S. 206, 226, 60 S. Ct. 493, 503, 84 L. Ed. 704 (1940); see also NLRB v. Olson Bodies, Inc., 420 F.2d 1187, 1189 (2d Cir. 1970), cert. denied, 401 U.S. 954, 91 S. Ct. 966, 28 L. Ed. 2d 237 (1971). Careful judicial scrutiny of the Board's action is necessary, however, in the face of accusations of failure to abide by precedent since the courts have an obligation to ensure that administrative agencies adhere to enunciated policies and procedures. See, e. g., NLRB v. Osborn Transportation, Inc., 589 F.2d 1275, 1279 (5th Cir. 1979); Memorial Hospital of Roxborough v. NLRB, 545 F.2d 351 (3d Cir. 1976).

Specifically, Hall-Brooke argues that the decision here is flatly inconsistent with the Board's decisions in Allied Electric Products, 109 NLRB 1270 (1954), Rebmar, Inc., 173 NLRB 1434 (1968), and GAF Corp., 234 NLRB 1209 (1978). In Allied Electric, the Board held that it would set aside any election in which the prevailing party had distributed, as part of its campaign literature, a document purporting to be a sample official ballot which was marked with a vote in either box or which contained similar alterations. In Rebmar, the Board set aside an election where the union had circulated a reproduced portion of the Board's official election notice the same portion at issue here. The circulated document in Rebmar, however, was altered by addition of a line at the bottom saying "The Government protects your right to organize yourself in a union." On the reverse side of the document was an explanation of the functioning of a union and of the collective bargaining process. There was no indication as to authorship of the additions to the document. The Board stated that duplication of an official document with a partisan message that might be interpreted as an endorsement by the Board would require that an election be set aside. 173 NLRB at 1434. More recently, in GAF, the Board held that placement of the official Board name and seal on a distributed campaign pamphlet entitled "It's the Law" setting out the legal rights of employees, although signed by the Union, created an "ambiguity" as to the Board's neutrality and required invalidation of the election.

In this case, the Regional Director, whose report and recommendations were adopted by the Board, stated that in general the Board will not condone any attempts to suggest Board support for either party. Here, however, the Regional Director found that the mailing of a portion of the "Rights of Employees" could not reasonably be said to have created an impression of Board endorsement. First, the document merely set out legal duties of the Board and certain unfair labor practices. Second, it was unaltered and contained no added union propaganda. Third, the document itself stated that the Board endorsed neither party in the election. Fourth, the attached Union material was clearly identifiable as the Union's partisan campaign material. It specifically gave the source of the leaflet as "Your Committee to Elect CHCA" and set forth the full name of the Union and its address. Finally, the Board's complete "Rights of Employees" notice was posted prior to the election so employees could tell it was part of an overall government document and not an endorsement of either party. Therefore, the Regional Director concluded that the circulated materials did not compromise the Board's neutrality or give the impression of Board endorsement.

Given the ample reasons for the Regional Director's finding that the Board's neutrality was not compromised, we cannot say that the Board erred in failing to set aside the election. Moreover, we conclude that the Board's ruling was consistent with its precedents. It is true, as Hall-Brooke asserts, that Allied Electric, Rebmar and GAF suggest that the Board will not tolerate the use in campaign material of the Board's name or of Board documents in a manner which suggests Board endorsement of either side in an election. Nevertheless, in this case, as the Regional Director found, there was no reasonable suggestion of Board endorsement. This result ...

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