Serv-Air, Inc.

SERV-AIR, INC. 263 Serv-Air, Inc. and Lodge 898, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO. Case 16-RC-5168 June 10, 1970 DECISION AND DIRECTION OF SECOND ELECTION By MEMBERS MCCULLOCH, BROWN , AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed on April 1, 1969, an election by secret ballot was conducted on April 22, 1969, under the direction and supervision of the Regional Director for Region 16 among the em- ployees in the appropriate unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 916 eligible voters, 920 cast ballots, of which 371 were for, and 545 were against the Petitioner, 3 ballots were challenged, and 1 was void. Thereafter, the Petitioner filed timely objections to conduct af- fecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and, on July 25, 1969, issued and served on the parties his Report on Objections in which he recommended to the Board that the Employer's motion to dismiss the Petitioner's objections be overruled; that Petitioner's Objections 5, 7, 10, 11, and 12 be overruled; and that Objections 4 and 9 sustained, the election set aside, and a new election be directed. In view of his recommendation that Objections 4 and 9 be sustained, he reserved ruling on Objections 1, 2, 3, 6, and 8. He further recom- mended, in the alternative, that if his recommenda- tions with respect to Objections 4 and 9 were not adopted, a hearing be held for the purpose of resolving credibility and making findings of fact on the basis of record testimony in regard to Objec- tions 1, 2, 3, 6, and 8. Thereafter, on August 4, 1969, the Employer filed timely exceptions to the Regional Director's report, submitting that any second election or recommendation thereof be de- nied, or at least deferred, until after a hearing on certain objections. On August 26, 1969, the Board directed that a hearing be held to resolve the issues raised with respect to Petitioner's Objections 1, 2, 3, 4, 6, 8, and 9. Thereafter, pursuant to notice of hearing on objections, a hearing was held on various days between September 23 and 26, 1969, in Enid, Oklahoma, before Hearing Officer Charles H. Steere. On December 5, 1969, the Hearing Officer issued and served on the parties his Report on Ob- jections in which he recommended that Petitioner's Objections 1, 2, 3, 4, 6, 8, and 9 be sustained, the election set aside and that the case be remanded to the Regional Director for the purpose of permitting him to conduct a second election. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, the Employer filed timely exceptions to the Hearing Officer's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists con- cerning the representation of employees within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The following employees, as stipulated by the parties, constitute a unit appropriate for purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All production and maintenance employees employed by Serv-Air, Inc., at Vance Air Force Base, Enid, Oklahoma, excluding all other employees, office clerical employees, professional employees, fire department em- ployees, guards, watchmen and supervisors as defined in the Act. 5. The Board has duly considered the Hearing Officer's Report on Objections and the entire record in the case, including the exceptions, and for the reasons set out below, adopts the Hearing Of- ficer's recommendation that the election be set aside and a second election be directed. The record shows that Objections 1, 2, 3, 8, and 9 in principal part involve the Petitioner's conten- tion that the Employer unduly interfered with the election by informing employees during the preelection period that in the event the Petitioner were selected as collective-bargaining representa- tive and a strike were called, they would lose their jobs. Uncontradicted testimony indicates that cer- tain supervisors declared to unit employees that in the event of a strike the Air Force would certainly take over the functions now performed by Serv-Air as it had done in the past when the Union called a strike in another bargaining unit in 1965. More im- portantly, the Employer, in two letters addressed to 183 NLRB No. 32 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees, during the preelection campaign, clearly conveyed the impression that selection of the Union would be meaningless since the Em- ployer intended to bargain from "scratch" in negotiating existing benefits, that the Employer would violate the law, as it had done in the past, rather than sign a contract, and that in order to secure any benefits the Union would have to strike, in which case the Air Force would surely take over and thus eliminate all jobs in the bargaining unit. In our view, the minatory character of the letters and the context in which they appeared constitute an improper interference with the election and justifies our setting the election aside. Petitioner's Objection 4 alleges that during the election, supervisors of the Employer were present in the voting area where they stared at voters getting in line and signaled to them to vote "No." It appears from the record that the voting area was not clearly demarcated or understood, that super- visors were present in the general area surrounding the polls by agreement and in pursuance of their normal activities, and that the evidence relating to their expressions and gestures was ambiguous. Under these circumstances we shall overrule this objection. In view of our determination herein, we find it unnecessary to pass upon Objection 6, which involves a no-distribution rule. ORDER It is hereby ordered that the election previously conducted herein on April 22, 1969, be, and it hereby is, set aside. [Direction of Second Election' omitted from publication. ] Member McCulloch , dissenting in part: I don 't agree with the "minatory" characteriza- tion of the statements relied on by my colleagues in setting aside the election . Hence I would overrule the Petitioner's objections based on this conduct. One of the Employer's statements found objec- tionable by the majority was that in the event of a strike the Air Force would take over the Em- ployer's operations as it had done in similar circum- stances in 1965. This seems to me a reasonable pre- diction of a kind which is privileged by Section 8(c). ". . . [A]n employer is free to tell employees what he reasonably believes will be the likely economic consequences of unionization that are outside his control , as distinguished from threats of economic reprisal to be taken solely on his own volition." N.L.R.B . v. River Togs, Inc., 382 F.2d 198, 202 (C.A. 2), quoted with approval in N.L.R.B. v. Gissel Packing Co., 395 U. S. 575, 619. Similarly, I evaluate as legitimate argument the statements contained in the Employer's preelection letters to employees that my colleagues regard as prohibited threats . The Employer stated reasonably and accurately that in the event the Union won the election, the employees would not necessarily get "more"; that under the law there is equal opportu- nity in bargaining to lose benefits as well as gain benefits . The Employer did not state that it would violate the Act rather than sign a contract , and that in order to secure any benefits the Union would have to strike . Nor fairly read in their entirety did the letters convey this impression in my opinion. The Employer did state , "if it is economically not feasible for the Company to grant their [ Union] de- mands, the Union may call for a strike . IS THAT WHAT YOU WANT? IS THIS FULL EMPLOY- MENT?" As I stated above, this is fair argument. i In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Un- deni ear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co., 394 U.S 759 Accordingly, it is hereby directed that an election eligibility list, con- taining the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 16 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed