Copps Food Center, Inc. (Central Bakery)

COPPS FOOD CENTER 395 Copps Food Center, Inc. (Central Bakery) and United Food & Commercial Workers Union 73A, AFL-CIO-CLC, Petitioner. Case 30-RC- 4863 August 31, 1989 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY The National Labor Relations Board, by a three- member panel, has considered objections to an election held January 27, 1989,1 and the hearing of- ficer's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 15 for and 21 against the Petitioner , with 5 nonde- terminative challenged ballots. The Board has reviewed the record in light of the exceptions and briefs, has adopted such of the hearing officer's findings2 and recommendations as are consistent with the following decision, and finds that the election must be set aside and a new election held. In her discussion of Objection 5, the hearing offi- cer found that in a January 9 meeting with employ- ee Peterson, Supervisor Burmeister told Peterson, "I hope you didn't sign anything," and that when Peterson told Burmeister that she had signed a card, Burmeister told her not to sign anything else. The hearing officer also credited Peterson's testi- mony that in a January 19 meeting with Burmeis- ter, Burmeister told her that a strike was likely if the Union was elected and then told Peterson: And, if I [Peterson] signed a card they would know very quickly who had signed one, and 1 All subsequent dates refer to 1989 unless otherwise noted 2 The Petitioner has excepted to some of the hearing officer 's credibil- ity findings. The Board's established policy is not to overrule a heanng 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) We find no basis for reversing the findings. In the fourth sentence of the fourth paragraph of her discussion of Ob- jection 7, the hearing officer inadvertently substituted Supervisor Bur- meister's name for that of General Plant Manager Watry in the phrase "Burmeister's reply deferred review of Peterson's productivity until after the election." We find that the hearing officer erred in stating, in her discussion of Objection 3, that none of the employees who testified regarding the Janu- ary 25 meetings in which Employer President Copps and Vice President Geis had addressed assembled employees "testified that Copps or Geis said anything regarding wage raises or union dues ." The record shows that employee Glisczinski testified that Copps "said to us several times during the course of his (January 25] conversation that the only thing we could be sure of if we did vote for union was paying union dues...." We find, however, that these comments by Copps do not constitute ob- jectionable conduct We find it unnecessary to rely on the hearing officer's statement in her discussion of Objection 4 that "a suggestion that collective bargaining may diminish employee benefits does not constitute objectionable con- duct." that that individual, or whoever, who signed a card would not be allowed to return to work if they opened up the bakery . And, that they would certainly reopen the bakery with unun- ionized [sic] people, and that I would not be transferrable. I would no longer be employ- able. I would not be considered an employee of Copps Central Bakery, and that I could not work at their main new store or at any other location, and the reason for that was they would be fearful that I would try to incite a union on those locations. However, the hearing officer found Burmeister's "implied threat of unspecified consequences if Pe- terson had signed or would sign anything for the union and the threat to not hire her at another Copps facility in the event of a strike [to be] isolat- ed, not of such severity to affect the larger unit, and not part of a pattern of objectionable conduct" and that the conduct "occurred well before the election on January 27." The hearing officer there- fore concluded that Burmeister 's statements were "insufficiently objectionable to set aside the elec- tion." We disagree with the hearing officer's conclu- sion. We find that Burmeister's January 19 state- ments, which threatened Peterson with discharge and "blackballing" if she signed a union card, in- volved serious objectionable conduct . Also, unlike the hearing officer, we find that Burmeister's meet- ings with Peterson, which occurred 18 and 8 days before the election, were not remote in time from the election.3 In addition, we note the hearing offi- cer's failure to consider the closeness of the elec- tion . As noted above, the tally of ballots was 15 for and 21 against the Petitioner, with 5 challenged ballots. If the five individuals whose ballots were challenged were eligible and voted for the Petition- er, a change in only one vote would have altered the outcome. Peterson's vote would then be deter- minative.4 Given the nature of the statements, their proximity in time to the election, and the closeness of the election, we conclude that Burmeister's statements to Peterson are not de minimis and that the election must be set aside.5 [Direction of Second Election omitted from pub- lication.] 8 See Video Tape Ca, 288 NLRB 646 fn 2 (1988) 4 Peterson testified that she told a "co-worker " about the statements Burmeister had made at the January 19 meeting There is no evidence in the record of whether this "co-worker" was a unit employee. See generally Video Tape Co., supra We find that Clark Equipment Co, 278 NLRB 498 (1986), in which the Board found that employer misconduct involving only 8 employees in a unit of 800 employees did not warrant setting aside an election that the union lost by almost 100 votes , is distinguishable from the instant case 296 NLRB No. 50