R. Dakin and Co.

R. DAKIN AND COMPANY 521 R. Dakin and Company and Warehouse Union Local No. 860, international Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 20-CA-5671 and 20-RC-8516 November 21, 1973 SECOND SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS'.TENKINS AND KENNEDY On March 6, 1970, the National Labor Relations Board issued a Decision and Order in the above- entitled case,' finding that R. Dakin and Company (hereinafter called the Respondent) had violated Sections 8(a)(5) and (1) and 2(6) and (7) of the National Labor Relations Act, as amended, by refusing to bargain upon request with the Union certified by the Board in Case 20-RC-8516 as the exclusive representative of Respondent's employees in the stipulated appropriate unit. On July 13, 1970, the Board sua sponte ordered that the record be reopened and a hearing be held before an Adminis- trative Law Judge 2 on issues raised by Respondent's Objections I through 6 to the election conducted on January 16, 1969, which were originally filed in Case 20-RC-8516. The Respondent filed a request for clarification of the Board's Order and on August 12, 1970, the Board denied the request. On January 11, 1971, after conducting a hearing in this case, as directed by the Board, Administrative Law Judge Martin S. Bennett issued a Supplemental Decision in which he found, inter alga, that union agents had committed certain conduct as described by the objections to the election, but at dates preceding the filing of the operative petition, and that, under the Board's Ideal Electric rule,3 that conduct therefore could not serve as the basis for setting the election aside. He recommended, accord- ingly, that the Board overrule the objections and reaffirm the Decision and Order previously issued in this case. On June 21, 1971, the Board issued its Supplemental Decision and Order4 upholding the Administrative Law Judge's application of the Ideal Electric rule and reaffirming the Decision. On April 2, 1973, the court issued its decision setting aside the Board's Order and remanding the case to the Board for further proceedings.5 The court held that the Board erred in its application of the Ideal Electric rule in this case and in its dismissal, accordingly, of the election objections without considering the factual and legal merit of those objections. The court stated, inter alia, that it was unreasonable to reject the evidence of the Union's misconduct in this case, particularly since "the Regional Director concluded, and the Board af- firmed, that the alleged misconduct `raised a substan- tial and material issue of fact' regarding the validity of the election." On June 15, 1973, the Board notified the parties that it would reconsider the case in conformity with the court's remand and invited the parties to file statements of position and briefs on the issue remanded by the court. Respondent thereafter filed such a statement and Petitioner sent a telegram setting forth its position and supporting authority. 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 entire record including the Respondent's statement of position, and Petition- er's telegram, supra, in light of the court's decision. The Board has accepted as the rule of law now governing disposition of this case, and this case only, the court's holding that the Board should not have rejected evidence describing the alleged objectiona- ble preelection conduct even though that conduct occurred before the Union filed the operative petition in the representation proceeding.6 Accord- ingly, the Board regards the sole issue for determina- tion before it now to be whether the preelection conduct committed by the Union, as below de- scribed, warrants setting aside the election held January 16, 1969. For the reasons set out below, we find that question should be answered in the affirmative and that the complaint forming the basis of the Order previously issued by the Board at 181 NLRB 572, and reaffirmed at 191 NLRB 343, should therefore be dismissed. The relevant evidence bearing on the issue, supra, is set out in the Supplemental Decision of the Adminis- trative Law Judge Martin S. Bennett, and his findings of fact therein were adopted by the Board.7 The Administrative Law Judge found that the alleged objectionable conduct consisted of two incidents, both of which were directed at warehouse- man Walter Walker. The credited testimony shows that the first incident occurred in the plant parking lot. On this occasion, Union Business Representa- i 181 NLRB 572- 2 The title of "Administrative Law Judge" was "Trial Examiner" until August 19, 1972. 3 The Ideal Electric and Manufacturing Company, 134 NLRB 1275. 4 191 NLRB 343. s 477 F 2d 492 (CA 9, 1973) 6 As noted by the court, that petition was the third of three the Union had filed within a 3-month period, and the Union had withdrawn its two earlier petitions for the same unit of employees 7 See 191 NLRB 343 207 NLRB No. 84 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives Hoffman and Suvaco asked Walker to sign an authorization card and Walker refused. Suvaco then said that if Walker signed at that time he would escape payment of an initiation fee and that if he did not he would receive "the dirtiest jobs in the warehouse, once the Union got in." Suvaco also stated that, if Walker voted for the Union, he would not have to pay an initiation fee, but that, if he did not vote for the Union, the payment would be required. The two agents also told him he had "better support the Union," because if he did not they would make certain that he would lose his job. With respect to the second incident, Walker and one employee were in the plant lunchroom when Hoffman and Suvaco entered. When Walker told them he had nothing to say to them, one of them cursed him and called him a scab. The union representative then stated that he would make it his business to see to it that Walker was not admitted to the Union, that he would receive "dirty" jobs after the Union entered the picture, and that the Union would see to it that he was eventually discharged. Walker returned the profanity and thereupon the warehouse foreman asked the union representatives to leave. As they departed, they announced that they would picket the warehouse, because Walker did not support the Union, unless a formal apology was forthcoming from the Respondent. It is undisputed that officials of Respondent were immediately advised of the above incidents. While the record is silent as to any attempts by Respondent to reply to the above statements of the union representatives, there is no evidence that the Union disavowed the conduct of its agents, or that the coercive effect of such conduct was in any way dissipated. Conclusion The atmosphere in which our elections are con- 8 Though perhaps not a crucial fact, a single vote was determinative in this election 9 181 NLRB 572. With due deference to the court, our decision herein is in no way to be interpreted as a change in our rule in Ideal Electric and ducted is of serious concern to us. We have in this record evidence that coercive threats of loss of jobs and other reprisals were made to one of seven eligible voters because he would not support the Union, on one occasion in the presence of a second employee.8 In addition, there were threats by the union repre- sentatives to picket Respondent's warehouse. The message these threats were meant to convey was clear and unambiguous: employees who failed to support the Union would be marked for union reprisal and management action in support of such employees would be met by picketing. That message, we conclude, was clearly calculated to and did operate to restrain the exercise of free choice in the election. Accordingly, we shall set aside the election and direct a new election. As we have found that the election which resulted in certification of the Union was invalid, we shall rescind our Order heretofore entered in this matter and dismiss the complaint.9 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed. It is further ordered that the election held on January 16, 1969, among Respondent's employees be, and it hereby is, set aside, and that Case 20-RC--8516 be, and it hereby is, severed and remanded to the Regional Director for Region 20 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] Manufacturing Company, supra, and Goodyear Tire and Rubber Company, 138 NLRB 453. As noted previously, the conclusion reached herein to set aside the election is pursuant to the court's holding as the law of the case, and is to be construed as so limited.