Greensboro News Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Greensboro News Company and Greensboro News- paper Guild, Local 80, affiliated with the News- paper Guild, AFL-CIO, CLC, Petitioner. Case I 1-RC-4956 August 13, 1981 DECISION AND DIRECTION OF SECOND ELECTION Pursuant to a Stipulation for Certification Upon Consent Election,' a secret-ballot election was held on February 13, 1981.2 The tally of ballots showed that, of approximately 70 eligible voters, 27 cast ballots for, and 37 cast ballots against, representa- tion by the Petitioner. There were five challenged ballots, an amount insufficient to affect the out- come. The Petitioner timely filed objections to the con- duct of the election. Following an investigation of the objections, the Acting Regional Director issued his Report on Ob- jections recommending that the Petitioner's Objec- tion 3 be sustained, and that a second election be conducted. The Board has reviewed the Acting Regional Director's report in light of the Employ- er's exceptions and brief, and adopts his findings3 and recommendations, as modified by this Deci- sion. The Acting Regional Director found that the Employer's statements to employees during the campaign warranted sustaining Objection 3. We agree. On February 5 the Employer gave a speech to the employees that included the following: A union would be bad for me, too. At pres- ent, your supervisors and I can deal with you as individuals with regard to any aspect of your employment-wages, benefits, hours, and problems. If the Union comes in, the Union will be your representative and we must deal with them, not you. Further, in a series of communications during the campaign the Employer advised employees that if they selected the Petitioner as their representative "it will be bad for all of us" and that they will all be "worse off." Section 9(a) of the Act expressly preserves the employees' right to approach management direct- 'The stipulated unit is: All employees employed in the Advertising Department of the Em- ployer including retail sales, zone/bureau retail sales, classified sales, national sales, sales services' typists and dispatchers, artists, layout clerks, co-op coordinator, and printer, excluding all other depart- ments, guards and supervisors as defined in the Act. 2All dates are in 1981. ' In the absence of exceptions, we adopt, pro forma, the Acting Re- gional Director's recommendation that Objections , 2, and 4 be over- ruled. ly. 4 The Acting Regional Director found the Em- ployer's speech with respect to the right to ap- proach management objectionable because it con- tradicts Section 9(a). However, the Acting Region- al Director characterized the speech as a mere mis- representation of the law. We conclude that the speech, read in the context of the Employer's state- ments that employees would be worse off, could reasonably be construed as a threat to deprive em- ployees of their right to deal directly with the Em- ployer. 5 Associated Roofing & Sheet Metal Co., Inc., 255 NLRB 1349 (1981). The speech was not, as the Employer contends, an explanation of the "fact[s] of industrial life." Rather, it was an improper threat by the Employer to terminate the existing beneficial situation. While an employer may explain that with union represen- tation the union will be a participant in employer- employee relations generally, an employer cannot threaten to retaliate against its employees' selection of a union representative by cutting off the em- ployees' Section 9(a) right to deal directly with management. The Employer argues that it did not threaten its employees but merely stated a limitation on its right to deal with them. It contends that, whereas Section 9(a) of the Act focuses on the employees' access to management, the Employer's speech fo- cused on its own inability to deal with employees if the employees were to select union representation. We find the Employer's attempted distinction spe- cious. Communication requires two parties. The Employer's statement that with a union it could not deal individually with employees about wages, benefits, hours, and problems implied that neither party would be able to approach the other to dis- cuss on an individual basis any condition of em- ployment, including grievances. In these circum- stances, we find that the Employer threatened its employees with the loss of their right under Sec- tion 9(a) of the Act to present their individual grievances to it if they selected the Union to repre- sent them. Accordingly, we sustain Objection 3, set aside the election, and direct that a second election be held as set forth below. [Direction of Second Election and Excelsior foot- note omitted from publication.] Sec. 9(a) provides: [A]ny individual employee or a group of employees shall hae the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment. 5 Because we find that the statement constitutes a threat, we find it un- necessary to pass on the Acting Regional Director's finding that the statement constitutes a misrepresentation. 257 NLRB No. 100 701