Rexall Corp.

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rexall Corporation and Office & Professional Em- ployees International Union, Local 13, AFL- CIO Cases 14-CA-14549 and 14-RC-9250 25 September 1984 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 18 October 1982 the National Labor Rela- tions Board issued a Decision, Order, and Direc- tion of Second Election in this proceeding,' finding that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by threatening em- ployees with possible discharge pursuant to an at- tendance control program and with the loss of cer- tain existing benefits if they selected union repre- sentation, and finding that the threats also consti- tuted objectionable conduct warranting setting aside the election 2 The Board, inter aim, ordered the Respondent to cease and desist from its unlaw- ful conduct, and directed that a second election be conducted Thereafter, the Board filed a petition for enforce- ment of its Order in the United States Court of Ap- peals for the Eighth Circuit On 10 January 1984 the court issued its decision, 3 which reversed the Board's finding that the Respondent threatened an employee with discharge pursuant to an attendance control program The court, however, upheld the Board's finding that the Respondent violated Sec- tion 8(a)(1) of the Act by threatening employees with the loss of certain existing benefits if they elected to be represented by the Union, and, ac- cordingly, granted enforcement of that portion of the Board's Order requiring the Respondent to cease and desist from making such threats Because a direction of an election in a representation pro- ceeding is not directly reviewable by a court of ap- peals, the court remanded the case to the Board for such further proceedings as might be appropriate in light of its decision to sustain one but not the other of the Board's findings of an 8(a)(1) violation On 12 April 1984 the Board advised the parties that it had decided to accept the remand and that they might submit statements of position with re- spect to the remanded issue Thereafter, the Re- spondent filed a statement of position ' 265 NLRB 121 (1982) 2 Pursuant to the Regional Director's Decision and Direction of Elec bon, an election was held 19 December 1980 Of approximately 96 eligi ble voters, 35 cast valid ballots for and 53 against the Union there were 8 challenged ballots 3 NLRB v Rexall Corp, 725 F 2d 74 (8th Cir 1984) The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel Our original decision found that the Respondent violated Section 8(a)(1) when supervisor of ac- counts payable and receivable Pryor discussed the possible loss of certain existing benefits with five employees during a meeting held 3 days before the election At the meeting, Pryor told her employees the date of the election, stressed the importance of voting, and reminded them that, if they selected union representation, they might no longer receive certain current privileges Specifically, Pryor said that personal telephone calls would have to go through the switchboard, instead of directly to and from the employees' desks through separate exten- sions, employees would be confined to a certain area during breaktime, rather than having unlimited access to the facility, and employees would no longer be permitted to report to work early and leave early Pryor did not qualify her statements by saying that terms and conditions of employment would be negotiable if the employees unionized The question before us is whether this conduct, also alleged as objectionable, is sufficient to set aside the 19 December 1980 election The Board established in General Shoe Corp, 77 NLRB 124, 127 (1948), that representation elec- tions are to be conducted under "laboratory condi- tions" in order to ensure that employees have the opportunity to make an uninhibited choice When such conditions are absent, the Board will set aside an election It has also generally been our policy to set aside an election whenever an unfair labor prac- tice occurs during the critical period We have rec- ognized one limited exception to this policy, how- ever, refusing to overturn elections where the "misconduct is de minima with respect to affecting the results of an election "4 Whether this standard is met depends on "the number of violations, their severity, the extent of dissemination, the size of the unit, and other relevant factors "5 Here, Pryor's threat of loss of existing benefits directly affected at least 5 employees of the ap- proximately 96 eligible to vote The threat in- volved depriving employees of three significant benefits As the judge stated in language the Board adopted 6 The benefits about which Pryor spoke were clearly meaningful, if not all to Beard, certain- ly to other employees They would be reluc- tant to place personal telephone calls through 4 Caron International, 246 NLRB 1120 (1979) 5 Id 6 265 NLRB at 126 272 NLRB No 58 REXALL CORP 317 the switchboard, whereas with their own tele- phone extensions, they were obviously free to do so Leaving early was of benefit to at least two employees Their inability to visit friends or go to the cafeteria at lunch, and instead the threatened limitation to their mobility, was of concern to all employees The effect of such conduct on the election re- sults cannot be calculated with mathematical cer- tainty If the eight individuals whose ballots were challenged were eligible and voted for the Union, a change in as few as six votes would have altered the outcome We know for a fact that at least five employees were aware of the unlawful threat by the Respondent's supervisor In such circum- stances, we cannot conclude with confidence that laboratory conditions were maintained and miscon- duct was de minims 7 Thus, we reaffirm our earlier conclusion that the election conducted 19 December 1980 must be set aside 7 The Board has found in some cases that a single 8(a)(1) violation during the critical period did not warrant the direction of a second elec lion See Caron International, supra (unlawful conduct directed toward 1 employee in an 850 member unit ( 1 percent) employed at 5 locations was held too minimal to have prevented a free election) Thermo King Corp, 247 NLRB 296 (1980) (foreman's violative statement made to 1 employee in a 500 member unit ( 2 percent) was too Isolated and insignificant to justify setting aside the election) The comparatively high percentage (5 percent) of unit employees affected by the unfair labor practice here dis tinguishes the Instant case We shall modify our previous Order by deleting paragraph 1(a) because the court refused to enforce it ORDER 1 Delete par 1(a) of the Board's Decision, Order, and Direction of Second Election reported at 265 NLRB 121, 123 (1982) and reletter the sub- sequent paragraphs accordingly 2 Substitute the attached notice for that attached to our original Order [Direction of Second Election omitted from pub- lication] APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT threaten you with the loss of cer- tain existing benefits if you elect to be represented by the Union WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act REXALL CORPORATION