SWECO, Inc.

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SWECO, Inc. and International Union, Allied Indus- trial Workers of America, AFL-CIO, Petitioner. Case 9-RC-10766 July 18, 1975 DECISION ON REVIEW AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 9 on Oc- tober 30, 1974, an election by secret ballot was con- ducted on November 22, 1974, under his direction and supervision, among the employees in the unit found appropriate. Upon conclusion of the balloting, the parties were furnished with a tally of ballots which showed that, of approximately 43 eligible vot- ers, 50 cast ballots, of which 15 were for, and 27 against, the Petitioner, and 8 were challenged. The challenged ballots were insufficient in number to af- fect the results of the election. Thereafter, the Peti- tioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and on February 19, 1975, issued his Supplemental Decision, Order and Direction of Second Election in which he sustained Petitioner's objection,' set aside the election, and directed a second election. Thereaf- ter, pursuant to Section 102.67 of the Board's Rules and Regulations, the Employer filed a timely request for review of the Regional Director's Supplemental Decision, contending, inter alia, that in sustaining the objection the Regional Director departed from Board precedent. On March 20, 1975, the Board, by telegraphic or- der, granted the request for review and stayed the second election. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thOity in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review and makes the following findings: The objection sustained by the Regional Director involved certain statements by the Employer in a let- ter and a speech concerning an unfair labor practice charge allegedly filed by Petitioner against the Em- 1 Petitioner had filed four numbered objections but later requested with- drawal of Objections 2, 3, and 4 and a portion of Objection I. The Regional Director approved the withdrawal request. ployer alleging discrimination with respect to the lay- off of employee McKnight. In a campaign flyer, the Petitioner appealed for employee support on the ground that it would pro- tect them against arbitrary and improper action of the Employer, specifically referring to the fact that it had filed an unfair labor practice charge grounded on the Employer's improper "discharge" of Mc- Knight. By letter dated November 16, 1974, the Employer responded that the Petitioner was playing "dirty pool" in claiming that McKnight was discharged without mentioning that two other named employees were laid off at the same time and for the same rea- son-lack of work. The Employer charged that the reason the Petitioner named only McKnight was be- cause "Unions play favorites. They discriminate. They don't play fair. They play DIRTY POOL." The let- ter further stated that the Employer refused Petitioner's request to reinstate McKnight with back- pay because it did not then need his services and therefore it would not be fair to the other employees who were laid off at the same time and for the same reason ; that, after Employer agreed to offer Mc- Knight employment in his former or an equivalent position when work became available, the Petitioner "had the gall to ask [Employer] to take McKnight back at a better job than he had when he was laid off"; and that the Employer rejected this request as it would "never `make work' or `promote' anybody just so some union can help out one of its favorites." In a speech to employees on November 21, the Employer discussed a number of reasons why em- ployees should vote against the Petitioner, and re- verted to the earlier charge of union favoritism in the following statement: In my letter the other day, I showed you how unions play favorites. They bragged about how they were going to get one of their buddies back here with lots of backpay, but they didn't lift a finger to help half a dozen other boys who were laid off at the same time as the buddy. That's the rankest kind of discrimination. Then, the NLRB people came to me, after talking with somebody, and wanted me to bring this man back with a better job title than he had when he was laid off. I could not agree to do that in fairness to the rest of you and to our customers. If the union forces its way in here tomorrow, and makes you belong to it with a union shop clause, there may be little that I can do to protect you against this type of favoritism and unfair discrimination. We find no warrant for the Regional Director's conclusion that the Employer's speech, considered in 219 NLRB No. 71 SWECO, INC. light of the earlier letter, conveyed the impression that the Board "was not completely neutral in its processing" of the representation case "and implied that the Board favored the Petitioner and character- ized the settlement negotiations [with respect to Mc- Knight] as an effort by the Board to encourage the Employer to play favorites among its employees." In our opinion, the thrust of the Employer's propaganda was that the Petitioner, not the Board, was playing "favorites" in filing a charge only on behalf of Mc- Knight and in seeking only his reemployment. Such an allegation constitutes fair comment which the em- ployees could evaluate. Indeed the Employer's only reference to the Board was the statement that Board personnel, "after talking with somebody," wanted the Employer to reemploy McKnight at a better job. Viewed in light of the Employer's consistent cam- paign theme and the qualifying phrase-after talking to somebody-we are satisfied that it would reason- 297 ably appear to the employees that the reference to the Board agent meant that he was merely relaying the Petitioner's position. Accordingly, we find that the Employer's remark did not impair the free choice of the voters and therefore the Petitioner's objection is hereby overruled. As the tally of ballots shows that the Petitioner has not received a majority of the valid ballots cast, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes have not been cast for International Union, Al- lied Industrial Workers of America, AFL-CIO, and that said labor organization is not the exclusive rep- resentative of all the employees in the unit herein involved within the meaning of Section 9(a) of the National Labor Relations Act, as amended.