Testing Service Corp.

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Testing Service Corporation and International Union of Operating Engineers, Local 150, AFL-CIO, Petitioner. Case 13-RC-12339 September 22, 1971 SUPPLEMENTAL DECISION AND ORDER DIRECTING A HEARING BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 13, an election by secret ballot was conducted by said Regional Director on May 6, 1971. At the conclusion of the election, the parties were furnished a tally of ballots which showed that of approximately 26 eligible voters, 15 cast ballots, of which I was for, and 10 against, the Petitioner. There were 4 challenged and no void ballots. The challenged ballots were not sufficient in number to affect the results of the election. Thereafter, the Petitioner filed timely objec- tions to conduct affecting the results of the election. In accordance with National Labor Relations Board Rules and Regulations, the Regional Director investigated the issues raised by the objections, and on June 30, 1971, issued his Report on Objections in which he recommended that Objection 1(c), (d), and (e) and Objection 2 be overruled, that Objection 1(a) be sustained and the election be set aside, and in the alternative that a hearing be held with respect to Objection 1(b). Thereafter, the Employer filed timely exceptions to the Regional Director's recommenda- tions as to Objection 1(a) and (b). Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegat- ed its powers in connection with this case to a three- member panel. The Board has considered the Regional Director's Report, the Employer's exceptions thereto, and the entire record in this case and makes the following findings: Contrary to the Regional Director, we are of the opinion that the Employer's speech 2 days before the election did not directly or indirectly threaten two employees with reprisals for assisting the Union at the representation hearing; nor can the Employer's single reference to a strike if the employees voted for the Union, in the context in which it was uttered, be taken as an attempt to instill in its employees a fear of the adverse effects of collective bargaining or imply that it would be futile for employees to select a labor organization to represent them. As we see the latter remark, it was no more than an expression of concern over the Employer's competitive position if the Union were to demand wage increases of $3 to $4 an hour as it had indicated during its campaign. Accordingly, we overrule Objection 1(a). Objection 1(b), however, concerns remarks alleged- ly made by a supervisor to four employees. The Regional Director recommended that a hearing be held to resolve certain credibility issues in the event the Board did not adopt his recommendation with respect to Objection 1(a). Since at least one version of the alleged remarks might be found to have interfered with the election and since a factual question has been raised, we shall order that a hearing be held with respect to Objection 1(b). ORDER It is hereby ordered that a hearing be held before a duly designated Hearing Officer for the purpose of receiving evidence to resolve the issues raised with respect to the Petitioner's Objection 1(b). IT IS FURTHER ORDERED that the Hearing Officer designated for the purpose of conducting such hearing shall prepare and cause to be served on the parties a report containing resolutions of the credibili- ty of witnesses, findings of fact, and recommenda- tions to the Board as to the disposition of said objection. Within the time prescribed by the Board's Rules and Regulations, either party may file with the Board in Washington, D.C., an original and seven copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other party and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the Hearing Officer. IT IS FURTHER ORDERED that the above-entitled matter be, and it hereby is, referred to the Regional Director for Region 13 for the purpose of conducting such hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof. MEMBER FANNING, dissenting: For the reasons set forth by the Regional Director in his Report on Objections, I would sustain Objection 1(a) and set aside the election. 193 NLRB No. 49