John W. Galbreath & Co.

876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD John W. Galbreath, d/b/a John W. Galbreath & Company and Service Employees International Union, Local 158-A, AFL-CIO, Petitioner. Case 9-RC-13867 April 29, 1988 SUPPLEMENTAL DECISION AND ORDER REMANDING TO THE REGIONAL DIRECTOR BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT Pursuant to authority granted it under Section 3(b) of the National Labor Relations Act, a three- member panel has considered objections to an elec- tion conducted October 9, 1981, 1 and the Regional Director's supplemental report 2 recommending dis- position of the same. The Board has reviewed the record in light of the exceptions and briefs and adopts the Regional Director's findings and recom- mendations only to the extent consistent 3 with this decision. 1. The Regional Director sustained the Petition- er's Objection 9 recommending setting aside the election on this basis and on the basis of certain "Other Conduct" of the Employer not specifically alleged in the Petitioner's objections. We disagree. The Petitioner's Objection 9 relates to statements printed in a pamphlet distributed by the Employer in the weeks immediately preceding the election. Specifically, the Petitioner alleges that the follow- ing statements misrepresented its ability to repre- sent the employees: [1] Q. You mean the union is going to speak for me? A. In almost every case, there's language on the cards that says, "I authorize the union to become the exclusive bargaining representative for terms and conditions of employment." In effect, you've lost the ability to speak for yourself. [2] Q. What else could I lose if the union gets in? A. Most union constitutions call for dues, as- sessments, fines, and even special assessments. 1 The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election. The tally was 12 for and 15 against the Peti- tioner. There was one challenged ballot, an insufficient number to affect the results. 2 On October 15, 1981, the Petitioner filed timely objections to the election On November 20, 1981, following an investigation, the Regional Director issued his report recommending that the election be set aside on the basis of conduct alleged in the Petitioner's Objection 7. The Employ- er filed timely exceptions and on February 3, 1983, the Board overruled the objections and remanded the case to the Regional Director for con- sideration of the remaining objections 266 NLRB 96 (1983) 3 In the absence of exceptions, we adopt the Regional Director's rec- ommendation that Objections 1, 3, 4, 5, 6, and 8 be overruled If (members) violate any provision of that union constitution or bylaws they're subject to discipline by the union. It could be a fine, a suspension, or expulsion. If any employee is expelled from the union and there's a union shop clause in the contract, then the employee has just lost his job. [3] Q. If there is a strike, what happens? A. If there's a strike for economic reasons, which included anything dealing with working conditions, we would have the right to find people to work in the place of strikers . . . those employees who have been replaced do not get their jobs back just because the strike ends. Q. You mean strikers can lose their jobs? A. You bet they can. However, they are not discharged, technically speaking. But they're not working. . . . The Regional Director found that first statement constituted a threat in contravention of Section 9(a) of the Act to withdraw an existing benefit, namely, the right of employees to deal directly with their employer in certain instances. In so finding, he relied on then existing Board precedent. 4 Howev- er, in Tr-Cast, Inc., 274 NLRB 377 (1985), which involved a similar statement, the Board announced the reversal of those precedents and stated: There is no threat, either explicit or implicit, in a statement which explains to employees that, when they select a union to represent them, the relationship that existed between the employee and the employer will not be as before. This is especially so, as implied in the Employer's statement here, where a collective- bargaining agreement is negotiated. Section 9(a) thus contemplates a change in the manner in which employer and employee deal. For an employer to tell its employees about this change during the course of an election cam- paign cannot be characterized as an objection- able retaliatory threat to deprive employees of their rights, but rather is nothing more or less than permissible campaign conduct. [Footnotes omitted.] As in Tr-Cast, Inc., the statement here simply explains that the relationship between the Employ- er and the employees will change in the event that the employees select a statutory bargaining repre- sentative, and it is therefore permissible campaign conduct. 4 Greensboro News Co., 257 NLRB 701 (1981), and Associated Roofing Co., 255 NLRB 1349 (1981). 288 NLRB No. 95 JOHN W. GALBREATH & CO 877 2. The Regional Director concluded that the second objected-to statement constituted "a veiled threat of discharge of an employee if the employee is expelled from the Petitioner, for any reason, and there is a contract with a union security caluse." Contrary to the Regional Director, we do not find the statement to be objectionable conduct. First, to the extent that it is alleged simply to be a misstate- ment of the law, it does not constitute objection- able conduct because the mere fact that a party makes an untrue statement, whether of law or fact, is not grounds for setting aside an election. River- edge Hospital, 264 NLRB 1094 (1982); Midland Na- tional Life Insurance, 263 NLRB 127 (1982). Of course Midland and Riveredge do not immunize co- ercive statements; but we do not believe that this statement rises to the level of a threat by the Em- ployer to discharge employees on the basis of union considerations. Although an employer has a role to play in the administration of a contractual union-security provision, the Employer's statement at issue here, setting forth its views of penalties the Union might, if elected, impose on those who vio- lated its constitution or bylaws, could not reason- ably be construed as a threat by the Employer that it would, or even could, unilaterally take action against employees under a union-security provi- sion.8 3. Similarly, we do not find the third statement to be objectionable. Rather, consistent with the Board's decision in Eagle Comtronics, Inc., 263 NLRB 515 (1982), we find that it is an unobjection- able, incomplete statement of economic strikers' Laidlaw rights. 8 In Eagle Comtronics, the Board considered an equally truthful but incomplete state- ment regarding the permanent replacement of strik- ing employees (i.e., that in the case of an economic strike, strikers "could be replaced with applications on file"). There, as here, the employer did not inform its employees about their rights to reem- ployment, but the Board concluded that the em- ployer was not required to do so. The Board, how- ever, distinguished that case from others in which employers "went beyond informing the employees of the risk of being permanently replaced by telling them they would lose their jobs." 263 NLRB at 516 5 Member Cracraft, although agreeing that misstatements of law or fact may fall within the Midland rule, disagrees with her colleagues re- garding the coercive nature of the Employer's assertion here that an em- ployee will lose his job upon expulsion from the Union if there is a union-shop clause in the contract. In agreement with the Regional Direc- tor, she would find the statement objectionable as a veiled threat of dis- charge. As the document containing this statement was circulated by the Employer to all unit employees m the 2 weeks before the election, she would order a new election on the basis of that statement alone. 6 Laidlaw Corp., 171 NLRB 1366 (1968). fn. 8 (emphasis in original). 7 The instant case is dis- tinguishable, as well. Although the statement print- ed in the Employer's pamphlet speaks in terms of job loss, it adds that employees are "not dis- charged, technically speaking, [Nut they're not working." In our view, this addition sufficiently dispels any impression that employees who engage in an economic strike are absolutely terminated. At most the statement may leave some employees puz- zled about how economic strikers can return to work, but it does not imply that they are dis- charged. Indeed, by stating that they are "not dis- charged" the Employer's statement implies that they retain their, status as employees. Therefore, we find that the statement does not coerce the employ- ees in their expression of free choice in the elec- tion, and we overrule Objection 9.8 4. The Regional Director also found that "Other Conduct," which came to light during the course of his investigation, warranted setting aside the election. More precisely, he found that the Em- ployer coercively interrogated an employee during an incident that occurred when the building man- ager and other supervisory personnel encountered the employee in an elevator. The Employer's build- ing manager told a leadperson to give the employ- ee a "vote no" sticker, and the leadperson pasted two of them on the employee's jacket. The build- ing manager then commented that the employee "looked better." The same employee later saw co- workers wearing the stickers. We agree with the Regional Director's analysis of this incident insofar as similar conduct has been found to be a form of unlawful interrogation. 8 Further, despite the ab- sence of evidence that other employees wearing antiunion stickers have been subjected to similar treatment, the incident cannot be deemed to be iso- In Webel Feed Mills Co., 217 NLRB 815, 818 (1975), the employer stated," employees who go on strike can be replaced with other em- ployees, and when they are replaced, they have no job." In Hicks-Ponder Co, 186 NLRB 712, 719 (1970), the employer told employees that it had a right "to continue to operate its plant and replace the striker with other employees, in which event the strikers would lose their jobs and have no right to return to work after the strike was over as long as the replace- ment remained employed." (Emphasis added ) 8 Member Babson, in overrulmg this portion of Objection 9, agrees with his colleagues that the additional language in the Employer's pam- phlet that employees are "not discharged, technically speaking, [Mut they're not working" sufficiently dispels any impression that employees who engage in an economic strike are terminated. Therefore, he finds it unnecessary in the context here to pass on the distinction drawn by the Board m fn 8 of Eagle Comtronies, supra, and relied on by his colleagues here In its exceptions, the Employer contends that the Board's policy on misrepresentations applies to the striker replacement statements. We dis- agree In our view, ostensible threats should not be analyzed under Mid- land National misrepresentation standards. Unlike the Employer's state- ment concerning the effect of union expulsion in a union-shop setting, discussed above, the Employer is the only party in a position to perma- nently replace economic strikers 9 Pillowtex Corp., 234 NLRB 560 (1978) 878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lated in view of the size of the unit (30 employees) and the relative closeness of the vote.' ° In spite of our agreement with the analysis of the objectionable character of the conduct, however, we decline to sustain the objection and instead remand the issue to the Regional Director for a de- termination of whether this incident may properly be considered as objectionable conduct under the principles of American Safety Equipment Corp., 234 NLRB 501 (1978), and Dayton Tire & Rubber Co., 234 NLRB 504 (1978), as clarified in Burns Security Services, 256 NLRB 959 (1981). Under the rule of those cases, an election may be set aside on the basis of objectionable conduct discovered by the Regional Director in the course of his investigation of a party's timely filed election objections. How- ever, if the evidence of misconduct unrelated to the timely filed objections comes to the Regional Di- rector's attention during the investigation at the ini- tiative of the objecting party after the time for filing objections has expired, the new evidence should not be considered as a basis for setting aside the election unless the objecting party has provided clear and convincing proof that the evidence was "not only newly discovered, but also previously unavailable." Burns Security Service, supra at 960. See also Rhone-Poulenc, Inc., 271 NLRB 1008 (1984). We cannot tell from the Regional Direc- tor's statement in his report concerning the "Vote No" sticker incident which category this comes within." If, on remand, the Regional Director clarifies the basis for his receipt of the evidence and shows the evidence to have been properly re- ceived under American Safety Equipment, then the election should be set aside on the basis of this inci- dent. If not, then this objection should be over- ruled. 5. Finally, in his Report on Objections, the Re- gional Director recommended that a hearing be conducted to resolve factual issues raised with re- spect to Objection 2, which alleges that in the 2 10 Cf Clark Equipment Co., 278 NLRB 498, 505 (1986), in which 8(a)(1) violations directed at 1 or 2 employees did not warrant setting aside an election m a unit of more than 800 employees. 11 At p 11 of his report, the Regional Director states, "Although not specifically alleged in the Objections, the Petitioner furnished evidence [about the sticker incident]." weeks before election the Employer's building manager threatened employees with loss of benefits if the Petitioner won the election and informed em- ployees that any negotiations would start from zero. The Employer denies making all such state- ments. Inasmuch as the statements may, in the con- text alleged, constitute impermissible conduct that necessitates the conduct of a new election, 12 we shall remand this proceeding to the Regional Di- rector in order that a hearing be held on Objection 2, if the "Other Conduct" objection is overruled for reasons set forth in Burns Security Services, supra. ORDER It is ordered that this proceeding be remanded to the Regional Director for Region 9 for the purpose of: (1) clarifying the circumstances surrounding the revelation of the acts referred to as "Other Con- duct" and issuing a report and recommendations thereon; and if this objection is overruled pursuant to Burns Security Services, 256 NLRB 959 (1981), (2) holding a hearing before a duly designated hearing officer for the purpose of receiving evi- dence to resolve issues raised with respect to the Petitioner's Objection 2. The Regional Director is authorized to arrange a hearing and to issue a notice of hearing. IT IS FURTHER ORDERED that the hearing officer designated for the purpose of conducting the hear- ing shall prepare, issue, and serve on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board concerning the disposition of the objec- tion. Within 10 days from the date of issuance of the report, either party may file with the Board in Washington, D.C., an original and seven copies of exceptions to the report. Immediately upon the filing of exceptions, the party filing them shall serve a copy on the other party and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recom- mendations of the hearing officer. 12 See Oklahoma City Collection, 263 NLRB 79 (1982), and Centre En- gineering, 246 NLRB 632 (1979).