Crown Chevrolet Co.

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crown Chevrolet Co. and C. Lee Barnes, Petitioner, and Automobile Salesmen's Union, Local No. 1095, affiliated with United Food and Commer- cial Workers International Union, AFL-CIO. Case 32-RD-235 April 10, 1981 DECISION AND DIRECTION The National Labor Relations Board has consid- ered the determinative challenges and objections to a decertification election held on May 30, 1980,1 and the Regional Director's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and brief2 and hereby adopts the Regional Director's findings and recommendations only to the extent consistent herewith. The Union's Objections 3 and 7 allege that the Employer induced its employees to vote for decer- tification of the Union by promising benefits to them. The Regional Director's investigation dis- closed that the Employer conducted a preelection meeting of eligible voters approximately 28 hours before the election, at which its lawyer informed the employees that, even if the Union were decerti- fied, the contractual wage rates would still be en- forceable against the Employer under California law and that, if the Union were decertified, the Employer intended to implement its last collective- bargaining proposals relating to hours, night open- ings, and holiday work. In concluding that the statement did not amount to objectionable conduct, the Regional Director stated that, in the absence of other evidence, . . . the statements . . . merely reflected the Employer's attorney's opinion concerning the enforceability of the Employer's contract until its stated expiration date, regardless of the out- come of the decertification election, and the Employer's lawful right to implement changes The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election. The tally was four for and four against con- tinued representation by the Union. There were three challenged ballots, a sufficient number to affect the results of the election. 2 In the absence of exceptions, we adopt pro forma the Regional Dire- tor's recommendation that the Union's Objections 1, 2, 4. 5, 6, and 8 be overruled in their entirety and that the three challenged ballots be opend- ed and counted. On September 17, 1980, the Union filed with the Board a motion to remand this proceeding to the Regional Director for further investiga- tion. On September 29, 1980, the Employer filed with the Board a re- sponse in opposition to the motion to remand. The motion and accompa- nying affidavit of Richard Salvaressa, a union officer, allege that the em- ployees in the unit in which the decertification election was conducted were unwilling to cooperate in the Regional Director's original investiga- tion because of their fear of employer reprisals. Neither the motion nor the affidavit contains specific allegations of conduct by the Employer that may have had such an inhibiting effect. The motion to remand is therefore hereby denied as it raises no evidentiary issues warranting fur- ther investigation. 255 NLRB No. 108 in employees' working conditions in the ab- sence of any obligation to bargain with the Union. We disagree with the Regional Director's char- acterization of the Employer's promise to imple- ment its last collective-bargaining proposals as to scheduling and holiday work.3 Unlike the Regional Director, we construe the statement as a promise of new or increased benefits sufficiently objection- able to warrant directing a new election in this case. In the vast majority of cases, decertification proceedings occur at a time when the incumbent union is negotiating a new contract with the em- ployer. Under such circumstances, if an employer promises to implement its latest collective-bargain- ing proposal, the clear implication is that the em- ployer has made concessions in negotiating sessions that represent an increase in prior contractual bene- fits. Such a statement, therefore, represents more than a promise to maintain the status quo and con- stitutes a promise of increased benefits if the em- ployees vote against the Union. Accordingly, we shall direct the Regional Direc- tor to open and count the challenged ballots and, if the results of the election conducted on May 30, 1980, disfavor the Union, to conduct a new elec- tion. DIRECTION It is hereby directed that, as part of his investiga- tion to ascertain whether the Union shall continue as representative for the purpose of collective bar- gaining with the Employer, the Regional Director for Region 32 shall, according to the Board's Rules and Regulations, within 10 days from the date of this Decision and Direction, open and count the ballots of C. Lee Barnes, Linda Bell, and Jim Kit- tredge, and cause to be served upon the parties a revised tally of ballots, including the count of the ballots of Barnes, Bell, and Kittredge. In the event that the revised tally of ballots shows that the Union has received a majority of the valid ballots cast, the Regional Director shall issue the appropri- ate certification of representative. In the event that the revised tally of ballots shows that the Union has not received a majority of the valid ballots cast, a second election by secret ballot shall be conducted among the employees in the unit found appropriate, at such time as the Re- gional Director deems appropriate. The Regional Director for Region 32 shall direct and supervise 3 We agree that, in the context of a decertification election, an employ- er does not promise new or increased benefits by advising its employees that it intends to maintain the status quo under an existing contract. El Cid. Inc., 222 NLRB 1315, 1316 (1976). See also Ellex Transportation, Inc. (Formerly Hugh Breeding. Inc.). 217 NLRB 750 (1975). CROWN CHEVROLET CO. 827 the election, subject to the National Labor Rela- tions Board Rules and Regulations, Series 8, as amended. Eligible to vote are those in the unit who were employed during the payroll period ending immediately before the date of issuance of the Notice of Second Election, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike which commenced less than 12 months before the election date and who retained their status as such during the eligibility period and their replacements. Those in the military services of the United States may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the designated payroll period and employees engaged in a strike who have been discharged for cause since the commencement thereof, and who have not been rehired or reinstated before the election date, and employees engaged in an economic strike which commenced more than 12 months before the election date and who have been permanently re- placed.4 Those eligible shall vote whether or not they desire to be represented for collective-bargain- ing purposes by Automobile Salesmen's Union Local No. 1095, affiliated with United Food and Commercial Workers International Union, AFL- CIO. 4 [Excelsior footnote omitted from publication.]