Head Ski Co., Inc.

HEAD SKI COMPANY, INC. 217 Head Ski Company; Inc. and Teamsters Local Union No. 311, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 5-RC-7550 July 23, 1971 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, BROWN, AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties on February 17, 1971, an election by secret ballot was conducted on April 2, 1971, under the direction and supervision of the Regional Director for Region 5, among the employees in the unit described below. At the conclusion of the balloting, the parties were furnished a tally of ballots, which showed that of approximately 341 eligible voters, 332 ballots were cast, of which 169 were for, and 161 were against, the, Petitioner, and 2 ballots were challenged. The challenged ballots were insufficient in number to affect the results of the election. Thereafter, the Employer filed timely objec- tions to conduct, affecting the results of the election. In accordance with the Board's Rules and Regula- tions, Series 8, as amended, the Regional Director conducted an investigation of the objections and, on June 2, 1971, issued his Report on Objections, in which he recommended that Objections 1, 2, 3, and 5 be overruled and that a hearing be held with respect to Objection 4. Thereafter, the Petitioner filed excep- tions to the Regional Director's recommendation with respect to Objection 4 and a brief in support thereof. The Employer filed a Memorandum in Support of the Regional Director's Recommendations on Hearing.' Pursuant to the provisions of Section 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. 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 Petitioner is a labor organization which claims to represent certain employees of the Employ- er. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer i By letter of July 7, 1971, addressed to Board Chairman Miller, the Employer also requested a hearing to determine whether the Union engaged in such misconduct following the election as to require remedial or punitive action against it. The Petitioner, by letter to Chairman Miller dated July 8, 1971, opposed the Employer's request. Copies of the foregoing communications were sent to all parties and have been considered by the Board. The Employer's request is hereby denied as it raises issues which can more appropriately be resolved in an unfair labor within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. In accordance with the stipulation of the parties, we find that the following, employees consti- tute a unit appropriate for the purpose of bargaining collectively within the meaning of Section 9(b) of the Act: All production and maintenance employees in- cluding shipping and receiving employees, jani- tors, inspectors, leadmen, engineering-technicians, service department employees, -plant clerical em- ployees, ski mechanics and print shop employees employed at the Employer's plant in Timonium, Maryland; but excluding salesmen, office clerical employees, service department clerical employees, draftsmen, professional employees, guards and supervisors as defined in the Act. 5. The Board has considered the Regional, Direc- tor's Report on Objections, the Petitioner's exceptions and brief,, the Employer's memorandum, and the entire record in this case. For-the reasons discussed below, we disagree with the Regional Director's recommendation that a hearing is needed to resolve Objection 4.2 The Employer's Objection 4 alleges that-Petitioner interfered with the election by threatening, coercing, and intimidating employees into voting for the Union. In support of this objection, the Employer produced two employee witnesses who testified that they were threatened by fellow employee Ed Fishpaw with physical harm and property damage if, after the Union won the election and if it thereafter called a strike, they crossed the picket line. The tenor of Fishpaw's comments is not disputed. However, no evidence was offered to show that Fishpaw was an agent of the Petitioner and the Employer does not so contend. Rather, the Employer takes the position that Fishpaw's status is irrelevant since his conduct, particularly when viewed in light of postelection events, created an atmosphere of fear and confusion among the employees which destroyed the "laboratory conditions" required for conducting Board elections. In addition, the Employer argues that, following the election (in the course of a strike which began on May 18,1971), the Petitioner in effect condoned and adopted Fishpaw's preelection con- duct by engaging in the type of violence which Fishpaw had threatened. The Regional Director found that the evidence, practice proceeding. 2 In the absence of exceptions thereto, we adopt pro forma the Regional Director's recommendations that Employer's Objections 1, 2, and 3 be overruled. The Employer's exception to the Regional Director's findings and recommendations with respect to Objection 5 raises no substantial or material issues of fact or law which would warrant reversal of the Regional Director's findings and recommendation or require a hearing. 192 NLRB No. 57 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "including alleged post-election conduct similar or identical to the alleged preelection threats," required a hearing to determine whether an atmosphere of fear so permeated the period before the election as to have effectively destroyed the conditions required by the Board for a free and uncoerced election. We disagree that a hearing is required here. It is axiomatic that the Board, in considering objections to an election, looks only to evidence of conduct which occurred between the time the petition is filed and the election is held.3 Accordingly, there is no basis here for considering evidence of alleged misconduct which occurred some 6 weeks or more after,the election to determine whether the preelection atmosphere was fraught with fear-and coercion. Those incidents could have no impact on the votes cast by the employees and cannot show an effect on the election atmosphere. Considering only the alleged preelection misconduct, therefore, the Employer's evidence, even if fully credited, would establish that one rank-and-file employee threatened' two of his fellow employees with physical harm and/or property damage in a hypothetical situation, i.e., if, after the Union won the election, it called a strike and the employees crossed the picket line. These threats, therefore, even though made in the presence of other employees, were the acts of a single employee; they 3 Goodyear Tire and Rubber Company, 138 NLRB 453. 4 The Great Atlantic and Pacific Tea Company, Inc., 177 NLRB No. 126. were not made by a union agent; and they were unrelated to how the employees voted in the election.4 In view, of these circumstances, we find that the Employer's objection based on alleged preelection threats is without merit and no useful purpose would be served by holding a hearing thereon. Accordingly, we shall issue the appropriate certification. As the Petitioner has received a majority of the ballots cast in the election, we shall certify the Petitioner as the collective-bargaining representative in the unit found appropriate, above. CERTIFICATION OF REPRESENTATIVE It is hereby certified that Teamsters Local Union No. 311, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of, America, has been designated and selected by a majority of the employees at the Employer's Timoni- um, Maryland, plant in the unit found appropriate, as their representative for the purpose of collective bargaining, and that, pursuant to Section 9(a) of the Act, the said organization is the exclusive representa- tive of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment.