Lehigh Valley Industries, Inc.

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Riverside Manufacturing Industries, Inc., a wholly owned subsidiary of Lehigh Valley Industries, Inc. and United Steelworkers of America, AFL-CIO, Petitioner. Case 18-RC-8005 August 27, 1970 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, MCCULLOCH, AND BROWN Pursuant to the provisions of a Decision and Direction of Election issued by the Regional Director on October 31, 1969, an election by secret ballot was conducted among . certain employees of the Employer on December 5, 1969, under the direction and supervision of the Regional Director for Region 18. On December 5, 1969, the parties were furnished a tally of ballots, of which 68 were cast for the Intervenor, Local 147, Over the Road, City Transfer Drivers, Dockmen, Warehousemen, and Helpers of America, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen, and Helpers of America; 48 were cast for the Petitioner, United Steelworkers of America, AFL-CIO; and 2 were cast against the participating labor organizations. There were no challenged ballots. On December 10, 1969, the Petitioner filed timely objections to conduct affecting 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 January 30, 1970, issued his Report and Recommendation on Objections to Conduct Affecting the Results of the Election, in which he recommended that the objections be overruled and that the results of the election be certified. The Petitioner filed timely exceptions to the Regional Director's report. The Employer filed a brief in opposition to the Petitioner's exceptions. The Board' has considered the entire record in this case, including the Regional Director's Report, the Petitioner's exceptions, and the Employer's brief in opposition thereto, and hereby adopts the findings and recommendations of the Regional Director only to the extent that they are consistent herewith.' ' Pursuant to the provisions of Sec 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel ' In the absence of exceptions thereto, we adopt pro forma the Regional Director's recommendation that Objections 3 and 4 be overruled We find, in agreement with the Petitioner, that the Petitioner's Objections 1 and 2 must be sustained and the election set aside. In his Decision and Direction of Election dated October 31, 1969, the Regional Director found that a 3-year contract entered into by the Employer and the Intervenor was not a bar to the petition since at the time of the signing of the contract, there was not a substantial and representative employee complement. General Extrusion Company, Inc., 112 NLRB 1165. These objections are based on speeches made to assembled groups of employees by the Employer's president, its labor relations attorney, Breskin, and the president of an area development corporation 2 days before the election; and statements allegedly made by Foreman Williams to individual employees on the day before the election. We do not agree with the Regional Director's conclusions that the Employer's representatives did not threaten the employees or indicate a preference between the Peti- tioner and the Intervenor. On the contrary, we find that the Employer not only expressed a preference for the Intervenor, but virtually threatened not to bargain with the Petitioner, and to move the plant work elsewhere if the Petitioner won. Thus, although the speakers reiterated their lack of concern over which Union won the election, they also made repeated reference to the contract recently negotiated with the Intervenor; and stated that the work in the plant had been bid on the basis of the wages and benefits in that contract, and that the employees would not get more. Breskin stated the Employer's position to be that the contract was a "bar . . . from negotiating again," and added, "from our point of view it is over with. We have negotiated . . . ." He also stated, "we think it's about time to get to work and these petty gripes either brought up through your present union machinery or forgotten." These remarks conveyed the impression that the Employer would stand on the contract it had negotiated with the Intervenor at a time when there was not a substantial and representative complement of employees; and it would be futile for the employees to vote for the Petitioner because if they did so, they would not be accorded the right to full representation by that Union to which they were entitled. The statements were reinforced with remarks to the effect that although the Employer wished to remain in the community, it had the privilege of breaking its lease at any time "during the first three years." Breskin also stated, "if what is in your mind is that we can bring in another union, renegotiate the contract and get more," then a strike is "a real possibility." Pointing out that the Petitioner had been 185 NLRB No. 44 RIVERSIDE MANUFACTURING INDUSTRIES, INC involved in more strikes than the Intervenor , Breskin added that in the event of a strike "we will have no choice but to get the work done somewhere else and that is in our other plant ." He drove home the message by stating, "if we aren't wanted, we ought to get the hell out, and we're prepared to do that too," and that "we have a legal right to move out of here and I hope we don 't have to prove it." Moreover, Foreman Williams admittedly stated to two individual employees that the Employer could leave in view of the lease agreement. We construe the above remarks as implied threats that a victory by the Petitioner, as contrasted with the Intervenor, would result in a strike caused by the Employer's refusal to bargain, followed by the closing of the plant and moving the work elsewhere. Accordingly, we find that the Employer coerced the employees into voting for the Intervenor and against the Petitioner, and thereby interfered with their free choice in the election. We shall therefore set this election aside and order a second election. ORDER 219 It is hereby ordered that the election conducted December 5, 1969, among employees in the appropriate unit be, and it hereby is, set aside. [Direction of Second Election' omitted from publi- cation.] ' In order to assure that all eligible voters may have the opportunity to be informed of the issues and the exercise of their statutory right to vote , all parties to the election shall have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, NL R B v Wyman-Gordon Company, 394 U S 759 Accordingly , it is hereby directed that an election eligibility list , contain- ing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 18 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 excep t in extraordinary circum- stances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed