Hahn Property Management Corporation

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hahn Property Management Corporation and Serv- ice Employees International Union, Local Union #18, AFL-CIO, Petitioner. Case 20-RC-15428 August 20, 1982 DECISION AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered the objections to an election 1 held on December 4, 1981, and the Acting Regional Director's report recommending dispositidn of same. The Board has reviewed the record in light of the exceptions and brief, and hereby adopts the Acting Regional Director's find- ings and recommendations. The Acting Regional Director found, and we agree, that the Employer engaged in objectionable conduct as a result of statements made by the Em- ployer's general manager to employees prior to the election. General Manager Woodle admitted that he told employees if the Petitioner won the elec- tion "communication would now be employee to union to management. I said this creates an adver- sary relationship. They could no longer talk to me directly about wages, problems, complaints." Our dissenting colleague, in finding nothing ob- jectionable in these statements, claims to appreciate the Board's proper role in overseeing representa- tion elections. However, his position is based on employer rights under Section !(c), which specifi- cally is limited in its application to unfair labor practice proceedings and therefore provides no direct guidance for representation election con- duct. 2 The general manager's statements are con- trary to the statutory proviso to Section 9(a) of the Act that employees in a collective-bargaining unit will still be able to meet directly with management and to present and adjust grievances. In addition, the statements expressly threaten an "adversary re- lationship" between unit employees and manage- ment. In order to claim there is no threat in the general manager's statement that direct access to manage- ment would be eliminated should the employees select a representative, our colleague seriously dis- torts that statement. In this diluted version, the The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election. The tally was four for, and seven against, the Petitioner; there were no challenged ballots. ' General Shoe Corporation, 77 NLRB 124 (1948). In any event Sec. 8(c) provides no protection for threats contained in employer statements. See Dal-Tex Optical Company, Inc., 137 NLRB 1782 (1962). 263 NLRB No. 80 manager stated only that the selection of a bargain- ing representative necessarily changes the relation- ship between the employer and its employees. We would have less quarrel with such a statement had it been made. The statement actually made, howev- er, threatens a particular adversary relationship which would allegedly preclude the survival of in- dividual rights, contrary to the express intent of the proviso to Section 9(a). Further, the dissent's reliance on Eagle Comtron- ics, Inc., 263 NLRB No. 70 (1982), is misplaced, as that case involved merely an incomplete statement of employee rights, not a statement in contradiction of employee rights as here. The latter type of state- ment does not involve mere legal technicalities and is not to be excused by speculation that it is based on ignorance of the law. Here, the general manager expressly conditioned the continued enjoyment of the Employer's practice to allow direct communi- cation between management and employees on the employees' rejection of the Petitioner. This unam- biguous threat has no basis in any section of the Act and is conduct tending to interfere with the employees' free choice in the representation elec- tion. See Sacramento Clinical Laboratory, Inc., 242 NLRB 944 (1979). [Direction of Second Election omitted from pub- lication.] 3 MEMBER HUNTER, dissenting: I cannot agree with my colleagues' decision to sustain the Petitioner's Objection 7 and direct a rerun election. In brief, that objection alleged, and the Acting Regional Director's investigation re- vealed, that approximately 3 weeks before the elec- tion the Employer's general manager, Woodle, en- gaged in discussions with individual employees. As noted by the Acting Regional Director, Woodle conceded in his affidavit that, among other things, he told employees that if the Petitioner won the upcoming election "communication would now be employee to union to management. I said this cre- ates an adversary relationship. They could no longer talk to me directly about wages, problems, complaints." The Acting Regional Director concluded that Woodle's remarks are objectionable as they consti- tute "clear misstatements of employee rights under Section 9(a) of the Act"; he further noted that simi- lar statements have been construed as a "threat" to deprive employees of their right to direct commu- nications with management concerning grievances. I disagree. In my view the Employer merely ex- ercised its right under Section 8(c) of the Act to acquaint employees with the fact that, in the event I [Excelsior footnote omitted from publication.] 586 HAHN PROPERTY MANGEMENT CORPORATION of a union election victory, the relationship be- tween an employer and its employees necessarily changes since there is then a statutory representa- tive with whom the employer must bargain over terms and conditions of employment. I see no threat, direct or implied, in such a simple statement of fact. Nor am I persuaded that a different result should obtain merely because the Employer, had it been of a mind to do so and had it been sufficiently knowledgeable in the law, might have gone on to explain to employees in detail all the provisions of Section 9(a) of the Act, including the proviso lan- guage.4 In this connection compare Eagle Comtron- ics, Inc., 263 NLRB No. 70 (1982), which involves the degree of detail required of an employer which 4 The proviso permits an employee or employees to present grievances to their employer and to have such grievances adjusted, without the in- tervention of the bargaining representative, as long as the adjustment is not inconsistent with the collective-bargaining agreement, and provided further that the representative has been given an opportunity to be present at such adjustment. exercises its free speech right to inform employees that they are subject to replacement in the event of an economic strike. In the instant case, as in Eagle, an appreciation of this Agency's proper role in overseeing representation matters, coupled with a modicum of commonsense, compels the conclusion that this Board has no business engaging in a strained and hypertechnical reading of campaign material as a basis for overturning an election. Indeed, as then Chairman Miller succinctly put it, when we insist upon a too purist view of what par- ties may say in election campaigns "the practical result is that freedom of choice has been frustrated by a highly technical application of a principle I agree with this sentiment and, accordingly, I would not sustain the objection. I See Bill's Institutional Commissary Corporation. 200 NLRB 1148 (1972) (concurring opinion). 587