Certified Grocers Of Illinois, Inc.

1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Certified Grocers of Illinois, Inc. and Highway Drivers, Doclanen, Spotters, Rampmen, Meat Packing House & Allied Product Drivers and Helpers, Office Workers & Miscellaneous Em- ployees, Local 710 A/W International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CI0, 1 Petition- er. Case 13-RC-16433 May 20, 1988 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered objections to an election held March, 21, 1985, and the Regional Di- rector's report recommending disposition of them. The election was conducted pursuant to a Decision and Direction of Election, which was issued on February 14, 1985. The tally of ballots shows 53 for and 87 against the Petitioner, with 17 chal- lenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and briefs, and has adopted the Re- gional Director's findings and recommendations, only to the extent consistent herewith.2 The facts are as follows. In February 1984 the Union began its organizational drive at the Em- ployer's facility and sent literature to the employ- ees at their home addresses. 3 Employee Laurie Beukema was upset when she received the litera- ture because she did not want her home address to become public knowledge and had only given her address to the Employer. Beukema complained to Keith Alessi, the Employer's secretary-treasurer, and he promised to investigate the matter. The Employer determined that Beukema's address was On November 2, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 On August 26, 1985, the Employer moved to consolidate this case with Case 1 3-CA-241 81 The motion was denied in Certified Grocers of Illinois, 276 NLRB 133 (1985), enf denied 806 F.2d 744 (7th Cir 1986) In that case, the Board found that the Employer violated Sec. 8(a)(1) of the Act by announcing overly broad rules restricting the disclosure by employees of fellow employees' names, addresses, or wage rates, and by threatening the employees with discipline for violation of the rules. The court denied enforcement of the Board's Decision and Order and, con- trary to the Board, found that the Employer's rules would not have been understood by the employees to be a prohibition against the disclosure of information obtained without breach of confidence The Employer's conduct at Issue here is the same conduct at issue in Case 13-CA-24181 3 The Petitioner requested a unit of approximately 160 office clerical employees working at three facilities The approximately 1200 remaining employees are represented by labor organizations located in a card file to which only the top man- agement and four personnel office employees had access. On March 6 and 8, 1984, the Employer held four meetings to discuss operational changes and vari- ous financial aspects of the Company; each meeting covered the same material. The employees were re- quired to attend one of the meetings. During a question-and-answer session in the first meeting, Beukema asked the Employer's officials how the Union had obtained her name and address. Alessi answered that the Employer did not know how the Union had obtained her address, that the informa- tion was confidential, and that "there is only one of several places it could have come from. When we find out, disciplinary action will be taken." During the next three meetings, Alessi repeated Beukema's question and his answer to the assembled employ- ees. The representation petition was filed on March 28, 1984. During the April 20, 1984 representation hearing, Alessi answered affirmatively to two ques- tions posed by the Employer's attorney: in one the attorney asked if pay rates were confidential and in the other whether any employee who revealed the pay rates of the Employer's employees would be subject to disciplinary action. This testimony was heard by two employees who were at the hearing. Following the election, the Petitioner filed objec- tions to the election. The Regional Director in his Report on Objections recommended sustaining Pe- titioner's Objections 1, 2, and 3 and directing a new election.4 In reaching this conclusion, the Regional Director "coupled" Alessi's critical period 5 wage statement with the precritical period announcement concerning names and addresses, and found that the "Employer's position and accompanying threats were widely disseminated to unit employ- ees." The Regional Director also considered the "ongoing nature" of the Employer's restrictions. The Employer has excepted to the Regional Di- rector's finding that Alessi's announcements and statements affected the results of the election. For the reasons stated below, we shall overrule the ob- jections based on this conduct. In reaching our de- cision, we are mindful of the court's discussion and analysis of the related unfair labor practice case that, as noted above, involved the same conduct at issue here. In this light we conclude that it would 4 The Regional Director recommended overruling Objections 4 to 9 We adopt his recommendation 5 In contested cases in which a decision and direction of election is issued by a regional director, the critical period starts on the date the pe- tition is filed and continues until the election Fruehauf Corp, 274 NLRB 403 (1985) The critical period in this case ran from March 28, 1984, to March 21, 1985 288 NLRB No. 117 CERTIFIED GROCERS 1035 not effectuate the purposes of the Act to affirm the Regional Director. We do not disagree with our dissenting colleague that in deciding this representation case we are not bound by the court's determination that the con- duct at issue here would not support a finding of a violation of the Act. We emphasize, however, that the court did not merely conclude that the conduct at issue did not rise to the level of an unfair labor practice, but it further unequivocally rejected the very interpretation of the events on which our dis- senting colleague must rely. Thus, the court found, inter alia, that "no reasonable person" could have interpreted Alessi's remarks as prohibiting disclo- sure of employee names, addresses, and wage rates beyond that which might, appropriately, be prohib- ited to protect confidentiality. 6 Given the court's interpretation of the identical conduct at issue here, we conclude that in the particular circumstances of this case the purposes of the Act would not be ef- fectuated by the direction of a second election. Accordingly, we conclude that all the Petition- er's objections should be overruled and find that a certification of results of election should be issued. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for Highway Drivers, Dockmen, Spotters, Rampmen, Meat Packing House & Allied Product Drivers and Helpers, In this regard, the court stated A worker would have to be irrational to think that when Alessi answered perfectly natural questions concerning the confidentiality of employee records he was laying down a "rule" forbidding em- ployees to disclose their names, addresses, and wage rates. Nothing in the context of his statements suggested any such ambition on his part or understanding On theirs, nor is there any evidence of such an understanding [806 F.2d at 749] Office Workers & Miscellaneous Employees, Local 710 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO and that it is not the exclusive rep- resentative of these bargaining unit employees. MEMBER JOHANSEN, concurring and dissenting. I concur that Objections 4 to 9 should be over- ruled. I would sustain Objections 1, 2, and 3 and would set aside the election. 1 The announcement that em- ployees would be disciplined for disclosing the names and addresses of employees was made on March 6 and 8, 1984. It was disseminated to the entire unit of approximately 160 employees. It was never retracted by the Employer and continued un- abated through the critical period. The announce- ment unquestionably had a chilling effect on the employees. The chilling effect was compounded on April 20, 1984, when the same employer official, Keith Alessi, stated that any employees who re- vealed the pay rates of the Employer's employees would be disciplined. This statement was also never retracted and continued unabated for the re- maining 11 months of the critical period. I find that, as the name and address announce- ment was never retracted and continued through the critical period, the Regional Director was cor- rect in "coupling" it with the critical period state- ment. When viewed together, the promulgation of the rules was objectionable and destroyed the labo- ratory conditions of the election. I would set aside the election and order a new election. 1 As my colleagues noted in fn 1, the Seventh Circuit found that the promulgation of the rules was not unlawful This finding does not bar the Board from finding the same conduct to be objectionable. See General Shoe Corp, 77 NLRB 124 (1984)