National Duct Corporation

NATIONAL DUCT CORPORATION National Duct Corporation and Sheet Metal Work- ers' International Association, Local Union No. 102, Petitioner. Case 5-RC-11468 November 17, 1982 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN 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' held on April 30, 1981, and the Acting Regional Director's report recommending disposi- tion of same. The Board has reviewed the record in light of the exceptions and brief,2 and hereby adopts the Acting Regional Director's findings and recommendations. We agree, for the reasons stated by the Acting Regional Director in his report, that the Employ- er's Objections I and 3 lack merit. Further, we agree with the Acting Regional Director that the Employer's Objections 2 and 4 also lack merit. However, we disagree with the rationale set forth by the Acting Regional Director in recommending that Objections 2 and 4 be overruled; rather, we set forth our rationale below. In Objection 2, the Employer alleged that the Petitioner threatened employees with bodily harm to coerce them to vote for the Petitioner. In sup- port of this objection, the Employer presented affi- davits from employees Fred Perkins and Richard Wingate. According to Perkins, he, along with five or six other employees, attended a union meeting I The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election. The tally was 7 for, and 3 against, the Peti- tioner; there were 2 challenged ballots, an insufficient number to affect the outcome of the election. a The Employer has moved that the Board compel the Acting Region- al Director to transmit to the Board the entire file, including affidavits and investigatory notes in this case. For the reasons stated in our recent decision in Summa Corporation d/b/o Frontier Hotel, 265 NLRB No. 46 (1982), we deny this motion. Moreover, the issue of the duty of Acting Regional Director to transmit evidence to the Board need not be ad- dressed in this case. Although statements of witnesses are expressly ex- cluded from the record as defined in Sec. 102.69(gXlXii) of the Board's Rules and Regulations, as revised September 14, 1981, here the witness statements submitted to the Acting Regional Director by the Employer, and which constitute all of the Employer's evidence in support of its ob- jections, were appended to the Employer's exceptions; once appended, they become part of the record as defined in Sec. 102.69(g) and have been fully considered by us. Thus, we have reviewed all of the Employ- er's evidence, and, having accepted as true the facts most favorable to the Employer, we have concluded, as set forth below, that the Employer has failed to meet its burden of presenting a prima facie case of objectionable election interference. Since none of the Employer's objections raises sub- stantial or material factual issues, no evidentiary hearing is warranted. See Sec. 102.69(d); Reichart Furniture Company v. N.LR.B., 649 F.2d 397 (6th Cir. 1981); Revco D.S, Inc. v. N.LR.B., 653 F.2d 264 (6th Cir. 1981). 265 NLRB No. 50 about 3 weeks before the election. Union Repre- sentative Charlie Peters conducted the meeting, and when Perkins asked a lot of questions about the Petitioner's area contract, Peters "got angry" and "insulted [Perkins] personally for taking a stand against the Union." Further, Perkins states, "I found out after the meeting from other employ- ees that George Quist [one of the co-chairmen of the employee organizing committee] had threat- ened to break both my hands, but would 'spare me' if I voted yes. I was told he said this in front of Peters and two other employees." Wingate, who also was at this meeting, stated in his affidavit that after Perkins asked a lot of ques- tions, Peters "got upset" and said, "If you don't play the game my way, you don't play at all." Ac- cording to Wingate, Peters then told Perkins "to go ahead and vote no because they didn't need him." The only other evidence presented by the Em- ployer in support of this objection was a letter from Peters to the Employer informing it that Larue Webster and George C. Quist were co-chair- men of the organizing committee. Having consid- ered the above evidence, and accepting as true the facts most favorable to the Employer, we find that the Employer has not presented sufficient evidence to establish a prima facie case of objectionable elec- tion interference. The only direct evidence present- ed by the Employer of alleged threats by the Peti- tioner was Wingate's statement in his affidavit that Peters told Perkins that if he did not "play the game" Peters' way, he would not "play at all," fol- lowed by a statement that Perkins should go ahead and vote "no" because his vote was not needed. We find nothing threatening or coercive in these remarks; rather, Peters' remarks seem to indicate merely an unwillingness to accede to Perkins' ideas or criticisms or to continue listening to them. Peters in no way threatened Perkins with bodily harm or in any way suggested that Perkins' em- ployment would be adversely affected if the Peti- tioner became the employees' bargaining repre- sentative. Under these cirmcumstances, we find nothing objectionable in Peters' remarks to Perkins. We further find that the alleged threat by Quist related in Perkins' affidavit is insufficient to estab- lish a prima facie case of objectionable conduct. Perkins did not hear Quist's remarks, nor did Per- kins specify the individual who related to him what Quist allegedly said about Perkins. Moreover, it ap- pears that the Employer made no attempt to ascer- tain the identity of the individual who talked to Perkins or of any individual who actually heard Quist's remarks or to present affidavits from any of these individuals to the Acting Regional Director. 413 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor did the Employer present any justification to the Acting Regional Director or to us of why such evidence could not be reasonably obtained by it. Under these circumstances, we find that the Em- ployer did not meet its burden of demonstrating by specific evidence that objectionable conduct oc- curred, and accordingly, on the basis of such un- substantiated hearsay, we find an evidentiary hear- ing unwarranted. Accordingly, we hereby overrule Objection 2. In Objection 4, the Employer alleges that the Pe- titioner granted work permits to employees who supported the Petitioner and refused to grant such permits to employees who opposed the Petitioner. In support of this objection, the Employer present- ed affidavits from employees Fred Perkins and Richard Wingate. Perkins stated in his affidavit that about a month before the election he asked George Quist and Larry Webster, co-chairmen of the organizing committee, if they had received or been promised "A cards," which are journeymen work permits. Webster said they had received them, but Quist stated that they had not received them. Two weeks later, according to Perkins, he received a telephone call from "someone who said he was the President of Local 102 of the Sheetme- tal Workers Union." That person mentioned "A cards" and promised Perkins he would get one if he voted "Yes" in the election. According to Wingate's affidavit, Peters told Wingate at a union meeting that he had to go to school if he wanted to be in the Union. However, Wingate states that he knew that Peters had prom- ised five employees "A cards," including George Quist who had not been to school. We find the above evidence insufficient to estab- lish a prima facie case of objectionable conduct. Even assuming that the Petitioner promised em- ployees "A cards" if they supported the Petitioner, such conduct is not sufficient to set aside the elec- tion. "A cards" are part of a system which would only operate if the Petitioner became the bargain- ing representative; thus, the Petitioner did not engage in objectionable conduct by telling employ- ees that such a system will be instituted if they sup- port the Petitioner. Indeed, without their support, the Petitioner would not become the employees' bargaining representative, and the system, there- fore, could not be put into effect. Moreover, con- trary to the Employer's assertion, there was no evi- dence presented that the Petitioner told employees that they would not receive "A cards" if they did not support the Petitioner. Accordingly, we find nothing objectionable in the Petitioner's promise of "A cards" to employees. Similarly, Wingate's state- ment that Peters told him he would have to go to school before obtaining an "A card," whereas one of the employee organizers was promised an "A card" without having to go to school, does not demonstrate objectionable misconduct. The Em- ployer presented no evidence that Wingate was op- posed to the Petitioner, that he was in fact quali- fied to receive a journeymen work permit without attending school, or that Quist was not qualified to receive a journeyman work permit without attend- ing school. Under these circumstances, we find in- sufficient evidence of objectionable election inter- ference and that an evidentiary hearing is unwar- ranted. Accordingly, we hereby overrule Objection 4. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Sheet Metal Workers' In- ternational Association, Local Union No. 102, and that, pursuant to Section 9(a) of the Act, the fore- going labor organization is the exclusive repre- sentative of all of the employees in the following appropriate unit for the purpose of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All full-time and regular part-time foremen, leadmen, mechanics, apprentices, and helpers employed by the Employer in the field and in the shop, located at 4809 Lydell Road, Hyatts- ville, Maryland, but excluding all other em- ployees, guards, and supervisors as defined in the Act. 414