National Labor Relations Board v. Vista Hill Foundation, D/B/A Vista Hill Hospital

639 F.2d 479
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 27, 1981
Docket79-7262
StatusPublished
Cited by9 cases

This text of 639 F.2d 479 (National Labor Relations Board v. Vista Hill Foundation, D/B/A Vista Hill Hospital) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Vista Hill Foundation, D/B/A Vista Hill Hospital, 639 F.2d 479 (9th Cir. 1981).

Opinions

ALARCON, Circuit Judge:

The National Labor Relations Board petitions this Court for enforcement of its order directing respondent Vista Hill Hospital (Hospital) to collectively bargain with the Service Employees International Union (Union). The Hospital concedes that it has refused to bargain with the Union, but contends that the Union should not have been certified as an exclusive bargaining unit due to alleged irregularities in the representation election. Unless the Hospital can prevail before this court in its challenge to the validity of the election, its admitted refusal to bargain constitutes a clear violation of Section 8(a)(5) and (1) of the National Labor Relations Act (Title 29, United States Code, Sections 158(a)(5) and (1)),1 and the Board is entitled to enforcement of its order. NLRB v. Heath Tec Division/San Francisco, 566 F.2d 1367, 1369 (9th Cir. 1978), cert. denied, 439 U.S. 832, 99 S.Ct. 110, 58 L.Ed.2d 127 (1979).

I. FACTUAL BACKGROUND

On November 22, 1977, the Union filed a representation petition with the Board seeking certification as the exclusive bargaining representative of specified employees of the Hospital. Thereafter, the parties entered into a Stipulation for Certification Upon Consent Election, which defined the appropriate unit to be represented by the Union and which set the election for January 10, 1978. The election was held as scheduled and resulted in 40 votes being cast in favor of the Union and 32 votes against.

On January 17, 1978, the Hospital filed objections to the conduct of the election [481]*481alleging that the union observer, Mark Collins, “engaged in electioneering consisting at least in part of interrogation of prospective voters and solicitation of favorable votes” for the Union. The Board’s Regional Director conducted an investigation of the Hospital’s objections and issued a report on March 1, 1978, recommending that the Board overrule the Hospital’s objections in their entirety. In the portion of his report pertinent to his appeal, the Regional Director stated that his investigation revealed that “Collins had three conversations with employees during the actual balloting in the election. However, all of the conversations were brief and did not involve any lengthy or sustained discussion. Thus, in two of the conversations, Collins told the voters he was glad to see that they had been able to come in to vote. In these conversations, there also was some brief discussion of the unusually heavy rainstorm that day. In the third conversation, which was not initiated by Collins, an employee asked Collins if he would be the union representative in the event Petitioner [the union] won the election, and Collins responded that he would accept the position if the employees chose him. The Board Agent conducting the election interrupted the conversation at that point and nothing further was said.” Based upon this evidence, the Regional Director concluded that “Collins’ conversations with voters were so minor that they ... do not warrant setting aside the election. Accordingly, it is recommended that this portion of the Employer’s objections be overruled.”

The Hospital subsequently filed exceptions to the Director’s report insofar as it held that the three conversations recounted by the Director between Union observer Collins and prospective voters did not warrant overturning the election. Included in these exceptions was an affidavit by Erma Roseblock, the Hospital’s election observer, in which she stated that Collins had participated in conversations with not three, but six prospective voters. Her recollection as to the content and approximate length of each of these conversations was set forth in the affidavit.2

On May 8, 1978 a three member panel convened pursuant to Section 3(b) of the NLRA3, rejected the Hospital’s exceptions, adopted the Director’s findings and recommendations, and certified the Union. Thereafter, General Counsel for the Board issued a complaint alleging that the Hospi[482]*482tal had violated Section 8(a)(5) and (1) of the NLRA by refusing to bargain with the Union. The Hospital answered the complaint, admitting that it had refused to bargain, but denying the validity of the Board’s certification of the Union. On September 22,1978, the General Counsel filed a motion for summary judgment directly with the Board. The Board issued both an order transferring the proceeding to the Board and a Notice to Show Cause why the motion for summary judgment should not be granted. The Hospital filed its opposition to the motion.

The Board granted the General Counsel’s motion for summary judgment on December 8, 1978, and found that the Hospital’s refusal to bargain constituted an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the NLRA. In addition, the panel concluded that it had already fully considered the Hospital’s objections to the underlying representation election in the certification proceeding so that a hearing on the objections was not warranted.4 The Hospital was ordered to cease and desist from the unfair labor practice found and was affirmatively directed to bargain with the Union upon request, and to post an appropriate notice to its employees stating the Hospital’s intention to comply with the order. The Board seeks enforcement of this order.

This enforcement proceeding raises one basic issue: whether the statements made by the union observer to prospective voters constituted electioneering or were merely innocuous comments.

II. DISCUSSION

1. Effect of Erma Roseblock’s Second Affidavit

In support of its objections to the findings and recommendations of the Regional Director, the Hospital submitted an affidavit by its election observer Erma Roseblock to the Board. In that affidavit Erma Roseblock alleged that she overheard six separate conversations between the Union’s observer and Hospital employees waiting to vote. The Hospital’s objections before the Board were two-fold: (1) that the three conversations specifically noted in the Regional Director’s report amounted to impermissible electioneering and were not isolated, innocuous comments; and (2) that the Director had failed to consider all of the election-day conversations witnessed by Roseblock. The Board considered these objections, but adopted the Regional Director’s findings and recommendations and certified the Union.

In urging this court to deny the Board’s petition for enforcement, the Hospital reiterates the two arguments it urged unsuccessfully before the Board. In support of the latter of these two contentions, the Hospital has applied to this court for leave to present additional evidence in the form of a second affidavit by Erma Roseblock. In that affidavit Roseblock states that the information regarding all six conversations contained in her March 15th affidavit was the same information that she had previously provided to the Regional Director during his investigation. Prior to oral argument, the affidavit was ordered lodged with the court for such consideration as this panel deems appropriate.

The parties have spent considerable time and effort arguing whether this court should consider the second affidavit and the import of the information contained therein.

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Bluebook (online)
639 F.2d 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-vista-hill-foundation-dba-vista-hill-ca9-1981.