Rosehill Cemetery Association

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IRosehiill Cemetery Association and Cemetery Work- ers and Greens Attendants Union, Local 365, Service Employees International Union, AIFL- CRO, Petitioner. Case 22-RC-8643 22 April 1985 DECISION AND DIRECTION BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Pursuant to a Stipulation for Certification Upon Consent Election, a secret-ballot election was con- ducted on 6 November 1981 among the employees in the stipulated unit. The tally of ballots furnished the parties shows that five ballots were cast for, and six ballots were cast against, representation by the Petitioner. There were three challenged ballots, a number sufficient to affect the election's results. Both parties filed objections to conduct affecting the results of the election and, following an investi- gation, the Regional Director issued a report on the objections and the challenged ballots in which he directed a hearing only on certain conduct un- covered in the course of the investigation, sus- tained the challenges to two ballots, and found the third ballot no longer determinative. Pursuant to timely exceptions to the Regional Director's report, on 26 July 1982 the Board directed" that a hearing be held on the conduct uncovered in the course of the investigation and on two challenged ballots. A hearing was conducted on 12, 16, and 19 August and on 8 and 10 September 1982. On 2 May 1983 the hearing officer issued his report in which he recommended that the two challenged ballots be opened and counted and that, if the Union did not then receive a majority of the valid ballots cast, the election be set aside because of ob- jectionable conduct by the Employer. The employ- er filed timely exceptions to the hearing officer's report and a supporting brief, and the Petitioner filed a reply brief. The Board has considered the hearing officer's report and the record in light of the exceptions and briefs and has decided to adopt the hearing offi- cer's findings,2 conclusions, and recommendations as modified. i 262 NLRB 1289 (1982) 2 The Employer has excepted to some of the hearing officer's credibil- ity findings The Board's established policy is not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Stretch-Tex Co, 118 NLRB 1359, 1361 (1957) Except as otherwise specifically set forth, we find no basis for reversing the findings In the absence of exceptions, the Board adopts, pro forma, the hearing officer's finding that there is insufficient evidence to establish that the Employer's general manager, Alan Kroboth, made objectionable state- ments to employees Manuel Luiz and Francisco Jorge The hearing officer relied on company payroll records to find that al- leged Supervisor Luiz' crew did not in fact work overtime other than The hearing officer recommended that, if the Pe- titioner did not obtain a majority of the valid votes cast, the election be set aside on the basis of objec- tionable threats and interrogations. We find that Turczmanovich's unlawful interrogations of em- ployee Elvir warrant setting aside the election.3 During the election campaign, Turczmanovich asked Elvir if he "knew something about the Union." Elvir initially replied that he did not know about the Union, but then admitted that he did. Approximately 2 weeks before the election, Turcz- manovich asked Elvir if he had seen anyone put- ting union cards on car windshields. Elver testified that he had recounted this incident to several em- ployees. In determining the effect of employer miscon- duct on the results of an election, the Board con- siders, among other factors, the size of the unit, the closeness of the election vote, the number of objec- tionable incidents, and the extent to which reports of that misconduct are disseminated to unit em- ployees. Caron International, 246 NLRB 1120 (1979). Here, the unit was small (approximately 14 employees), and the Petitioner lost the election by a single vote. Further, contrary to the dissent, we find sufficient evidence that Elvir informed at least three4 unit employees about Turczmanovich's in- quiry whether he had seen anyone placing union cards on car windshields. Elvir, a credited witness, testified that he informed employees Luiz and Jorge of this incident. Although neither Luiz nor Jorge testified at the hearing, the record contains no evidence rebutting the credited testimony that Elvir informed Luiz and Jorge of this interroga- tion. Elvir also testified that he thought Castro may have been present during the interrogation and that he (Elvir) later discussed the incident with Castro. While Castro testified that he had not been present during the interrogation, he was not ques- regularly scheduled overtime Because the record reveals that employees received compensatory time off rather than monetary compensation, the payroll records may not accurately reflect the amount of overtime worked We therefore do not rely on this finding of the heanng officer, but we find that this factual error does not affect the conclusion that Lutz is not a statutory supervisor Because we adopt the hearing officer's find- ing that Manuel Luiz is not a supervisor, we find it unnecessary to pass on the alternative finding that, if Luiz is a supervisor, he engaged in ob- jectionable conduct We also adopt the hearing officer's finding that the nature of Elvir's purchasing authority does not confer managerial status on that employee We do not endorse any implication that the authority to pledge credit to order supplies may never confer managerial status 9 Because we find that Turczmanovich's interrogations of employee Elvir constitute sufficient objectionable conduct to set the election aside, it is unnecessary to consider the alleged threats by General Manager Kroboth to employee Castro that the employees would lose benefits if they selected the Petitioner as their collective-bargaining representative 4 Perhaps a fourth, as Elvir testified he told Rivera about the interro- gation Although Rivera did not recall the conversation, that can hardly be considered grounds for discrediting Elvir's testimony 275 NLRB No. 33 ROSEHILL CEMETERY ASSN tioned at the hearing as to whether Elvir men- tioned this incident to him . Thus, Elvir's claim of dissemination to Castro is also unrebutted. Accordingly, we conclude that Turczmanovich's interrogations did have an impact on the employ- ees' free choice sufficient to require setting aside the election. Meadow Crest, Inc., 272 NLRB 502 (1984). DIRECTION It is directed that the Regional Director for Region 22 shall, pursuant to the Rules and Regula- tions of the Board, within 10 days of this Decision and Direction, open and count the ballots cast by Manuel Luiz and Jose Elvir and thereafter prepare and serve on the parties a revised tally of ballots. In the event that the revised tally shows that Peti- tioner has not received a majority of the valid bal- lots cast, a second election by secret ballot shall be held among the employees in the unit found appro- priate. The Regional Director shall direct and su- pervise the election, subject to the Board's Rules and Regulations. Eligible to vote are those em- ployed during the payroll period ending immedi- ately before the date of the Notice of Second Elec- tion, 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 that began less than 12 months before the election date and who re- tained their employee status during the eligibility period and their replacements. Those in the mili- tary services 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 payroll period, striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the election date, and employees engaged in an eco- nomic strike that began more than 12 months before the election date and who have been perma- nently replaced. Those eligible shall vote whether they desire to be represented for collective bargain- ing by the Petitioner. CHAIRMAN DOTSON, dissenting in part. Unlike my colleagues, I do not conclude that the Employer's misconduct in this case has a sufficient impact on employee free choice to warrant setting aside the election. The direction of a second elec- tion is based solely on two statements by Assistant Manager Turczmanovich, one asking employee Elvir "if he kn[ew] something about the Union" and the other asking the same employee whether he had seen anyone place union cards on car wind- 181 shields. There is no evidence that the first question was repeated to any other employee. Testimony concerning dissemination of the second question is at best confused: Elvir claims that employee Castro was present when Turczmanovich asked him whether he saw union cards being placed on wind- shields, but Castro testified he was not. Elvir also testified he related this incident to Rivera, who denies any recollection of it. Elvir testified that he also told two others about the question, though nei- ther of these witnesses was questioned about it at hearing. In these circumstances, I consider the Em- ployer's conduct to be isolated and relatively minor. Furthermore, I disagree with the hearing offi- cer's second basis for setting aside the election. The hearing officer found that General Manager Kro- both threatened employee Castro that benefits would be lost if employees selected the Union as their representative. I believe that, in so finding, the hearing officer overlooked crucial testimony and misinterpreted Kroboth's testimony. Castro tes- tified that during a brief conversation Kroboth de- scribed the employees' existing benefits and said that "if the Union got in, we'd lose the benefits and they'd have to go into negotiations." The hearing officer failed to mention that Castro also testified on cross-examination that Kroboth said only that "if the Union comes in all the benefits would have to be renegotiated; if the Union comes in, we'll have to negotiate everything, benefits and all"; and "the Company would have to negotiate all the ben- efits with the Union." The hearing officer did men- tion that Castro "affirmed" that Kroboth told him "that if the Union won the election that every- thing, all the things that he spoke about were nego- tiable." It is unclear what, if any, significance the hearing officer attached to this lawful statement. This version of Castro's testimony is fully corrobo- rated by Elvir whose testimony the hearing officer neglects to mention and who specifically denied Castro told him Kroboth threatened the loss of benefits. Kroboth also denied making such a threat, stating he told employees only that "everything is negotiable." In short, the record convincingly demonstrates that Kroboth merely informed Castro that existing employee benefits were subject to negotiation if the employees selected union representation. That statement is a permissible description of the normal give-and-take of the collective-bargaining process. Accordingly, I find no basis for setting this election aside and directing a second election. Instead, I would direct the opening of challenged ballots and issue the appropriate certification.