Movsovitz & Son, Inc.

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Movsovitz & Son, Inc. and '..:era R Confectionary Workers International Union, AFL-CIO, Local 110, Petitioner. Case 10-RC--8446 December 6, 1971 DECISION ON REVIEW BY CHAIRMAN' MILLER AND MEMBERS FANNING AND JENKINS two matters which arose at the hearing. The first involved an alleged statement by an International representative of the Petitioner which the Employer claims is a promise of benefit. The second is an alleged threat by certain employees to other employ- ees of bombing, burning, or gassing them if they did not support the Petitioner. While neither of these items was alleged in the stated objections, evidence in regard thereto was adduced at the hearing and is therefore properly before the Board for consideration. On October 27, 1970, the Regional Director for Region 10 issued a Decision and Direction of Election in the above matter. On November 25, 1970, an election by secret ballot was conducted among the employees in the unit found appropriate for the purposes of collective bargaining. The tally of ballots indicates that 60 votes were cast for, and 50 votes against, the Petitioner. There were 3 challenged ballots. Challenges are not sufficient to affect the results of the election. On December 1, 1970, the Employer filed timely objections which were duly served on the Petitioner. On March 18, 1971, the Regional Director issued a Supplemental Decision and Order Directing Hearing and Notice of Hearing on the objections. The hearing was held on April 16, 1971, before Hearing Officer Howard Trimble. On July 27, 1971, the Hearing Officer issued his report, finding the objections to be without merit and recommended certification of the Petitioner. On August 9, 1971, the Employer filed exceptions to the report. On August 18, 1971, the Regional Director issued a Second Supplemental Decision and Certifica- tion of Representative in which he affirmed the Hearing Officer's findings and recommendations. On August 30, 1971, the Employer filed a Request for Review of the second supplemental decision and on September 13, 1971, the Board granted review of the second supplemental decision and stayed the certifi- cation pending review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Employer's Request for Review, and hereby makes the following findings. The Request for Review raises no issues in regard to the dismissal of the objections filed. The only matter raised is the failure of the Hearing Officer and the Regional Director to make any findings in regard to 1 The Regional Director adopted the Hearing Officer's finding that no threats were made during this meeting. The Request for Review is not directed toward this finding 1. The alleged promise of benefit The Employer's stated objections involved a meet- ing held by the Petitioner in which threats were allegedly made by the Petitioner's International representative and racial issues were injected into the campaign. Seventeen different witnesses testified as to what occurred at this and other meetings.' A witness called by the Employer was asked on cross-examination to give her recollection of the International representative's remarks at this meeting and her recollection of other meetings. She stated that at a previous meeting held about November 7, 1970, and within the critical period, the International representative stated that he had run several cam- paigns in the area including one at a refinery near the Employer's plant and that he had purchased beer and whiskey for the refinery employees but they had voted against him. According to the witness, the representa- tive added that he would buy beer and whiskey for the Movsovitz employees, but he would wait until after the Union won the election. The witness was asked if any beer and whiskey had been supplied after the election, and she stated she was not aware if it had been. No other witness corroborated the testimony regarding this matter although all were asked about their recollection of what the International represent- ative stated.2 The Hearing Officer did not credit this witness in her recollection of other events at this meeting. It thus appears that the only evidence of the alleged promise to purchase beer and whiskey is the uncorro- borated testimony of one witness, who was discredit- ed in other aspects of her testimony. In such circumstances we question whether such a promise was in fact made. However, assuming arguendo such a promise was made, it would not be the basis for setting aside an election. The Board has long since held that the supplying of meals or alcoholic beverages at a party is not necessarily coercive or destructive of an atmos- phere in which a free choice can be made.3 The 2 The Hearing Officer excluded all witnesses during the hearing. 3 Lloyd A. Fry Roofing Co, 123 NLRB 86; Zeller Corp., 115 NLRB 762, Olunite Corp, 1 l 1 NLRB 888. 194 NLRB No. 68 MOVSOVITZ & SON„ INC. 445 alleged remarks of the International representative, reasonably interpreted, appear to be no more than a promise to engage in this tactic. While the fact that such promise was conditioned on a union victory in the election is troublesome, the mere possibility of obtaining this type of minimal gratuity is not such an emolument as can reasonably be expected to influ- ence the employees' free choice in the election.4 2. The alleged bomb threat Our examination of the record indicates that only one employee, Baker, testified to any "threats" involving "bombing," and he conceded that these remarks were made in the midst of jocular bantering, or "teasing" as he described it. On cross-examination by the Employer's counsel,5 he was able only to name one former employee, "Paul," as having made any such potentially offensive remarks, and, further, he was unable to recall the date or place of this remark or identify the individual to whom it was addressed.° In the Employer's objections bomb threats were alleged to have been made by the International representative at a meeting.? Nearly all witnesses were asked general questions as to bomb threats, but no other employees mentioned the incidents described by Baker. From the above it appears that the record as to threats is scanty indeed and further establishes that if they were made at all, which is doubtful, they were made in a jocular vein. On this record we do not find a basis on which to set the election aside. As neither of these matters raised in the Request for Review warrants a determination to set the election aside, the Regional Director's Second Supplemental Decision and Certification of Representative is hereby affirmed. 4 Jacqueline Cochran Inc., 177 NLRB No. 39. 5 Although he was invited to cross-examine further by the Heanng Officer, the Employer's counsel declined to do so. 6 All the foregoing remarks were characterized by the witness as joking and being mere snatches of conversation which had been overheard in passing. 7 The Regional Director adopted the Hearing Officer's finding that no such threat was made by the International representative. The Request for Review does not address itself to this finding.