Dreyers Grand Ice Cream Northwest

DREYERS GRAND ICE CREAM 817 MKD Distributors d/b/a Dreyers Grand Ice Cream Northwest and General Teamsters Local No. 174 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 19-RC- 11210 30 April 1986 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON The National Labor Relations Board, by a three- member panel, has considered the objection to the election held 2 July 1985 and the hearing officer's report recommending disposition of it. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 11 for and 7 against the Petitioner, with no challenged ballots. The Board has reviewed the record in light of the exceptions and briefs and adopts the hearing of- ficer's findings and recommendations only to the extent consistent with this Decision and Direction of Second Election In its objection the Employer contends that the prounion activities of Tom Burns, a statutory su- pervisor, interfered with the election. The hearing officer recommended that the Employer's objection be overruled. The Employer excepts to the hearing officer's recommendation and, for reasons set forth below, we find merit in this exception. There is no dispute about the hearing officer's finding that Tom Burns, the Employer's account merchandise manager, had the supervisory author- ity to hire, fire, discipline, and reward unit employ- ees. Burns, dissatisfied with his working conditions, outspokenly advocated union representation in the course of the numerous conversations he had with unit employees between the start of the Petitioner's organizing campaign on 15 May and the date of the election. Approximately I week before the election, David Mutzel , the Employer's president, handed each of the unit employees a written "personal guarantee" that the Employer would not retaliate against employees for views they held before the election and would not discriminate against or treat them differently because they supported or op- posed the Union. Employees questioned Burns about the value of this "personal guarantee." Burns answered that the guarantee meant absolutely noth- ing. He further stated that although he did not be- lieve Mutzel would take any action against employ- ees, he did not trust John Graham, the Employer's vice president of sales and marketing. He explained 279 NLRB No. 107 that Graham was in charge of the sales force and consequently could tell Mutzel that a driver sales- man was not performing his job properly and Mutzel would have to believe Graham. Burns stated that he did not believe that the employees had job security. He asserted that Le* Maddux and Greg Knight, the most outspoken union propo- nents, were "marked employees" who could be ter- minated if the employees did not vote for the Union. Burns observed that the employees had gone too far to turn back now and would be crazy not to vote for the Union. The Board will find an election invalid if the prounion conduct of a supervisor reasonably tended to have such a coercive effect on employees that it was likely to impair their freedom of choice in an election. This objectionable conduct typically involves situations where the supervisor has co- erced employees into supporting a union out of fear of future retaliation by that same prounion su- pervisor. E.g., Sheraton Motor Inn, 194 NLRB 733 (1971). Here, Burns did not expressly threaten that he would use his own authority to retaliate against employees who failed to support the Union. As noted above, however, in his numerous conversa- tions with employees Burns repeated the theme that the employees had no job security without the Union and, by his reference to a fellow supervisor, Graham, fueled fears that if the Union lost the election, prounion employees would be discharged by others in management for pretextual reasons. In these circumstances, and given Burns' active and outspoken advocacy for the Union, 1 we fmd that an actively prounion supervisor who himself threatens retaliation, or who, by virtue of his equal standing with fellow supervisors, suggests that other supervisors will retaliate against prounion ad- vocates unless everyone votes for the union, rea- sonably tends to effectively coerce employees in the exercise of their free choice in the election. This is so, not because the supervisor himself can control whether other supervisors shall in fact re- taliate, but because employees listening to a super- visor, such as Burns here, reasonably could con- clude that Burns was privy to management policy or sentiment regarding the organizing activity, and thus was in "a position to know" the true feelings of fellow supervisors like Graham. We therefore conclude that Burns' conduct reasonably created among the employees the fear of possible supervi- sory retaliation by others in supervision if the Union were not successful in the election and that ' The hearing officer found that Bums was a "major" supervisor. In the context here, we find it unnecessary to pass on the hearing officer's distinction between "major" and "minor" supervisors. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such conduct interfered with the election. Accord- ingly, we sustain the Employer's objections and shall direct a second election. [Direction of Second Election omitted from pub- lication.] MEMBER JOHANSEN, dissenting. I would affirm the hearing officer and certify the Union as representative. Supervisor Burns' predic- tion that the Employer's vice president would re- taliate against union supporters if the Union lost was his opinion. It was not within Burns' control and it was not a threat. Similar logic could turn almost any warning into a threat.