ITT Consumer Services Corp.

APCOA DIV.-ITT CONSUMER SERVICES 65 Apcoa Division-ITT Consumer Services Corporation and Teamsters Local Union # 769, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Petitioner. Case 12-RC-3951 March 2, 1973 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted under the direction and supervision of the Regional Director for Region 12 on December 15, 1971, among the employees in the unit described below. The tally of ballots showed that, of approxi- mately 57 eligible voters, 54 cast ballots, of which 37 were for, and 16 were against, the Petitioner, and 1 was challenged. The challenged ballot is insufficient to affect the results of the election. On December 20, 1971, the Employer filed timely objections to conduct affecting the results of the election. In accordance with the Rules and Regula- tions of the National Labor Relations Board, Series 8, as amended, the Regional Director conducted an investigation and on February 25, 1972, issued and duly served on the parties his Report on Objections to the election and recommendations to the Board. In his report, the Regional Director concluded that Objections 1, 2, 3, and 5 were meritorious and recommended that they be sustained, that the election be set aside, and that a second election be directed. Petitioner submitted a motion to reopen the record which the Regional Director denied. Thereaft- er, Petitioner filed timely exceptions to these findings and recommendations and appealed from the Re- gional Director's refusal to reopen the record. On June 14, 1972, the Board issued an Order directing a hearing with respect to Employer's Objections 1, 2, 3, and 5, and on July 20, a hearing was held before Hearing Officer Melvin R. Hutson. i If our dissenting colleague's characterization of the events surrounding the election were, in fact, supported by the record, we might be more inclined to accept his position The record, however, will not support-in- deed, it contradicts-such a characterization For example , the dissent ignores several facts-the anonymous calls to Manager Falbo continued after the election, the supervisors who were subjected to harassment did, in fact, present the Employer's position to the employees by sending campaign letters and speaking with small groups of employees until a day or two before the election ; to the somewhat limited extent that they knew of the harassment against the supervisors, the employees assumed that these acts were committed by several employees who had been discharged several months earlier, and the one employee who received anonymous calls received them both before and after joining the Union and blamed them on previously discharged employees, testifying that he cast his vote without fear. Thus, not only is the third party conduct here not attributable to the On September 11, 1972, the Hearing Officer issued his report, attached, in part, hereto as the Appendix, recommending that the Employer's objections be overruled and that a Certification of Representative be issued. On October 10, 1972, the Employer filed exceptions to the report. 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 that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Union is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All cashiers (toll collectors), gate attendants, runners (hikers), lot cleaner-valet van driver and ticket collectors employed by the Employer at the Miami, Florida International Airport, excluding all office clerical employees, watchmen, guards and supervisors as defined in the Act. The Board has considered the Hearing Officer's report and recommendations and the Employer's exceptions thereto and hereby adopts the Hearing Officer's findings and recommendations.' Accord- ingly, as the tally of ballots shows that the Petitioner has received a majority of the valid ballots cast, we shall certify it as the exclusive bargaining representa- tive for the employees in the appropriate unit.2 Petitioner, but the employees specifically attributed such conduct to the employees who had been discharged previously Clearly, the employees did not in any way relate these acts of harassment, beginning prior to the Union's petition for certification and continuing after the election, to the Union's campaign. Such conduct could not possibly, therefore, have had any coercive or disruptive effect on the election nor could it have rendered impossible the employees' free expression of choice of representation Thus, under these circumstances the anonymously created conduct is insufficient to support a finding that the employees were denied the expression of a free choice as to warrant setting aside the election . N LR B v Monroe Auto Equipment Co, 470 F 2d 1329 (C A 5, Dec 12, 1972), Bush Hog, Inc v NLRB , 420 F 2d 1266, 1269 (C.A. 5) 2 The Employer requested oral argument This request is hereby denied as the record, the exceptions, and the beefs adequately present the issues and positions of the parties 202 NLRB No. 5 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Teamsters Local Union #769, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. CHAIRMAN MILLER, dissenting: The record here evidences that this election campaign was marked by a deliberate campaign of vandalism, harassment, and intimidation directed at one management representative and a more limited, but similar and no less dramatic, attempt to intimidate a second management representative. It is also obvious that the employees in the unit knew of the hooliganism that was taking place. Its connection with the election was demonstrated by the painting of the figure "15" on one management representa- tive's car and the other's sidewalk. (December 15 was the election date.)3 We do not know who engaged in these regrettably vicious tactics. We do know that they were effective in intimidating the affected management representa- tives into discontinuing their active role in manage- ment's attempts to express its views to employees about the election. We do not know the extent to which employees may have believed that they, too, might be subjected to like treatment at the hands of anonymous union-supporting fanatics if they should choose to speak out against the Union. We do know-or at least I know-that an election held in that kind of atmosphere cannot be said to have been held under laboratory conditions. I would direct a second election. 3 The majority nevertheless concludes , in the face of these facts , that the employees did not in any way relate these acts of harassment to the election campaign'