Skogrand-Buesing, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Skogrand-Buesing, Inc. and International Union of Operating Engineers, Local No. 9, AFL-CIO, Peti- tioner. Case 27-RC-5716 March 20, 1979 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MFMBHRS JENKINS, MURPHY, AND TRUESDALE Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended, a three- member panel has considered objections to an elec- tion' held on July 13, 1978,2 and the Regional Direc- tor's report, pertinent parts of which are attached hereto as an appendix, recommending disposition of same. The Board has reviewed the record in light of the Employer's exceptions and brief, and hereby adopts the Regional Director's findings and recom- mendations.3 CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for International Union of Op- erating Engineers. Local No. 9, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Rela- tions Act, as amended, the said labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of col- lective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of em- ployment: All service department employees including me- chanics, helpers, welders and parts employees employed by the Employer at the Employer's fa- cility at 2630 Delta Drive, Colorado Springs, Colorado; but excluding all office clerical em- ployees, truckdrivers, guards and supervisors as defined in the Act. MEMBER MURPHY, dissenting: Contrary to my colleagues in the majority and the Regional Director, I would set the election aside on grounds that Supervisor Redd's admitted threats that employee Ellis would be fired if he did not vote for the Union violated the laboratory conditions neces- sary for the holding of a free and fair election. I The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was three for, and one against the Peti- tioner; there was one challenged ballot, an insufficient number to affect the results. 2 All dates hereinafter are 1978 unless otherwise indicated. We share our colleague's concern for maintaining an election atmosphere free of coercion. However, we cannot ignore well-settled principles of agency, and we will not allow an employer to object successfully to its own coinduct, whether such conduct be pro or antiunion. Although there can be no question that a supervi- sor's statement to an employee that the latter will be discharged if he does not vote in accordance with the supervisor's desires is objectionable, the majority re- fuses to set the election aside and adopts the Regional Director's finding that the Employer was afforded but did not avail itself of the opportunity to disavow the supervisor's conduct. The Board's objective in repre- sentation proceedings is the holding of free and fair elections. However, the effect of the majority's hold- ing here is to "punish the Employer" for its inaction rather than to insure that the election is conducted in an atmosphere free of coercion, and thus their con- cern is misplaced. Indeed, the majority has neglected to consider the possibility that the results of the elec- tion may not represent the free choice of the employ- ees. and hence they may be "punishing" the employ- ees as well. The fact that there were only approximately four employees in the unit renders it even more likely that the threat was repeated; there- fore, such a consideration is all the more compelling. Rather than uphold the election result here, where there is at least a question as to the true desire of the employees, the Board's objective of holding free and fair elections would be better served by setting the election aside. The foregoing is not be taken as a conclusion that I would never find that an employer's failure to dis- avow supervisory conduct requires that the employer not benefit by its own inaction. Indeed, I agree with the holdings of Diversified Products Corporation, 199 NLRB 1024 (1972); and Talladega Cotton Factory, Inc., 91 NLRB 470 (1950), both cited by the Regional Director. In those cases, however, the supervisory participation in the union campaign was relatively in- significant, and, unlike the instant case, there was no allegation that a prounion supervisor had threatened an employee with discharge if the latter failed to vote for the union. Accordingly, I find those cases inappo- site to the situation presented here. On the basis of all the foregoing, I would sustain the objection and re- luctantly set the election aside. APPENDIX Objection No. I 1. Throughout the preelection campaign the Union used Mr. Steve Redd, a company supervisor, to actively aid the Union in its organizational efforts to solicit and secure au- thorization cards from the Company's employees. Said su- pervisory employee threatened, intimidated, and coerced employees working in the bargaining unit in an effort to secure their support on behalf of the Union. Objection No. 2 2. Specifically, on or about July 7, 1978, Mr. Steve Redd, a Company supervisor, initiated a converation with a mem- 241 NLRB No. 40 292 SKOGRAND-BUESING, INC. ber of the bargaining unit and informed him that when the Union got in, Redd would see that the employee would be fired if he did not vote for the Union in the election. The Employer's objections relate to similar or identical incidents and conduct and therefore those objections will be consolidated for the purposes of this report. The investigation disclosed that on or about June 20, 1978, employee Mickey Ellis, mechanic, began employment with the Employer. Discussion with other employees re- vealed he was not in favor of the Union. About July 6, 1978, Ellis was working his night shift and was at the shop at 11:00 p.m. Ellis, in his affidavit, stated Redd came into the shop and engaged him in a conversation concerning the upcoming election. Ellis advised Redd he was not in favor of the Union. Redd told Ellis if he didn't vote for the Union he would see that Ellis was fired. Ellis replied that Redd might as well see that he was fired. Redd. in his affidavit, admits making the threat. Ellis further stated in his affidavit that the following Sat- urday, July 8, 1978, he had a conversation with Company President Thomas Buesing. Ellis initiated the conversation and advised Buesing that Redd had discussed the Union with him and that Redd had told him if he didn't vote for the Union Redd would see that he was fired. Ellis told Buesing he did not mind discussing the Union but he did not like threats. Ellis stated that Buesing didn't respond and the two of them had a general conversation with Buesing giving Ellis a "verbal back patting." Buesing states in his affidavit that Ellis advised him of Redd's threatening him with his job, and he replied to Ellis that he though[t] Ellis was doing a "good job." It is the union's position that Redd did not act as agent for the union and has never been an agent of the union. Further, if Redd did engage in such activity, he did so only on his own. Under the assumption that Redd is a supervisor, as the Employer contends, it does not appear that Redd's threat is grounds for setting aside the election. The Board has held that where the Employer has knowledge of supervisory par- ticipation in union activity, as is the case here, and does not seek to dissipate any possible coercive effect of such ac- tivity, it will not allow the Employer to take advantage of its inability to control its supervisory staff. See Diversified Products Corporation, 199 NLRB 1024 (1972), and Tallade- ga Cotton Corporation, 91 NLRB 470 (1950). In the instant case the Employer (through Buesing) had ample opportuni- ty to disavow Redd's threat of Ellis and thereby attempt to dissipate any possible effects of said threat on the results of the election. Instead, Buesing merely chose to ignore the threat and engage in an innocuous conversation which in- cluded some faint praise of Ellis' ability to perform his job. Under these circumstances, I find that there is insufficient grounds for setting aside the election. 293