Goffstown Truck Center, Inc.

GOFFSTOWN TRUCK CENTER, INC. 157 Goffstown Truck Center, Inc. and Chauffeurs, Team- sters, and Helpers Local 633, a/w International Brotherhood of Teamsters. Case 1–RC–22272 November 18, 2010 DECISION AND DIRECTION OF THIRD ELECTION BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND PEARCE The National Labor Relations Board, by a three- member panel, has considered an objection to a rerun election held on October 23, 2009, and the hearing of- ficer’s report recommending disposition of it. The elec- tion was conducted pursuant to a Decision and Direction of Second Election.1 The tally of ballots shows 23 for and 20 against the Petitioner, with 2 challenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the ex- ceptions and briefs, and has adopted the hearing officer’s findings and recommendations2 only to the extent con- sistent with this Decision and Direction of Third Elec- tion. The hearing officer recommended overruling the Em- ployer’s objection alleging that the Petitioner’s organiz- er, Robin Loder, visited employees at their homes and represented that she was acting with the authorization of the NLRB to ascertain how they would vote. Contrary to the hearing officer, and for the reasons set forth below, we find merit in the Employer’s objection and shall di- rect a third election. Facts A second election was directed in a unit of school bus drivers at the Employer’s Londonderry, New Hampshire facility. In the weeks leading up to the second election, Union Organizer Loder visited the Employer’s school bus drivers at their homes, as she had prior to the first election. 1 On July 21, 2009, the two sitting members of the Board issued a Decision and Direction of Second Election, which is reported at 354 NLRB 359 (2009). On June 17, 2010, the United States Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that under Sec. 3(b) of the Act, in order to exercise the delegat- ed authority of the Board, a delegee group of at least three members must be maintained. In light of New Process Steel, the Board has, sua sponte, decided to reconsider the postelection representation issues that were addressed in the prior decision. The Board has reviewed the record in light of the exceptions and briefs, and has adopted the hearing officer’s findings and recommendations to the extent and for the rea- sons stated in the July 21, 2009 Decision and Direction of Second Elec- tion, which is incorporated herein by reference. 2 In the absence of exceptions, we adopt pro forma the hearing of- ficer’s recommendation to overrule the Employer’s Objection 2, alleg- ing that the Union created the impression of surveillance. In one such visit, on October 2, 2009,3 Loder met em- ployee Rebecca Binder. Binder recognized Loder from a campaign visit before the first election. Loder told Bind- er that she was there “on behalf of the NLRB” to deter- mine how employees were voting, because “they” were trying to determine whether to go forward with the elec- tion, and whether there was enough interest in union rep- resentation. Loder then asked Binder how she was going to vote. Binder told Loder that she planned to vote against union representation and briefly explained her reasons. The conversation ended shortly thereafter. During the week of October 12, Loder visited employ- ee Crystal Ashman at Ashman’s residence. When Loder introduced herself, Ashman responded that she knew who Loder was, as she recognized Loder from the Un- ion’s previous campaign. Loder stated that she was there “on behalf of the National Labor Relations Board and Teamsters 633” regarding the upcoming election, and asked if Ashman would tell her how she was going to vote. When Ashman stated that it was none of Loder’s business, Loder responded that the NLRB and the Team- sters wanted to know. Ashman restated that it was none of Loder’s business, told Loder to leave her property, and shut the front door. The Hearing Officer’s Report The hearing officer recommended overruling the elec- tion objection. The hearing officer reasoned that Loder’s misstatements were, at most, “a misrepresentation of Board processes or actions” and, as such, should be con- sidered in a manner similar to other campaign misstate- ments that have been found not objectionable. In sup- port, the hearing officer relied on Riveredge Hospital, 264 NLRB 1094 (1982) (union’s leaflet erroneously stat- ing that the government issued a complaint against em- ployer not objectionable), and TEG/LVI Environmental Services, 326 NLRB 1469 (1998) (union’s flyers stating that the Board wants the workers to have a union not objectionable). The hearing officer considered Loder’s statements to be “even more innocuous” than the mes- sages found not objectionable in TEG/LVI and Riveredge Hospital, because those messages implied that the NLRB favored one election outcome over another. The hearing officer therefore concluded that Loder’s statements were not a basis for setting aside the election. Contrary to the hearing officer, we find that Loder’s statements compromised the integrity of the election pro- cess and therefore constitute objectionable conduct war- ranting setting aside the election. 3 All dates are in 2009, unless otherwise indicated. 356 NLRB No. 33 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 158 Analysis At the outset, we find that Riveredge Hospital and TEG/LVI, relied on by the hearing officer, are not appli- cable to Loder’s conduct, as those cases do not concern statements purporting to come from the Board. Rather, the prior decisions hold that a “party’s misrepresentation of the Board’s action” should be treated similarly to oth- er campaign misrepresentations which, under the Board’s Midland doctrine,4 are not objectionable. The Board reasoned in those cases that when a misstatement about the Board’s processes or neutrality comes from a party to the election, employees will understand it to be election propaganda, and the “Board’s actions speak for them- selves, and will show up any misrepresentation for what it is.” Riveredge, supra at 1095; TEG/LVI, supra at 1469. Unlike the communications in Riveredge and TEG/LVI, Loder’s conduct involved more than a mis- statement of the Board’s processes. It also included a misstatement about her authority, as she purported to speak “on behalf of the NLRB” in eliciting information about how the employees intended to vote. In other words, she expressly stated that her question to the voter was from and on behalf of the National Labor Relations Board. By purporting to act on behalf of the Board, Loder made it difficult for the “Board’s actions [to] speak for themselves.” Further, the message Loder conveyed, at least in the conversation with Ashman, was that the Board was not entirely neutral, but was working with the Union in the election process.5 Clearly, a misstatement about the Board’s processes and/or its neutrality carries far more weight if the statement purports to be from the Board itself rather than from a party to the election. By misrepresenting that she was acting on behalf of the Board, Loder’s conduct implicated concerns similar to those presented when a party to an election distributes an altered sample ballot with the Board’s official dis- claimer language deleted. Like Loder’s statements here, an altered ballot falsely purports to convey a message from the Board itself, suggesting a lack of neutrality. 4 Midland National Life Insurance Co., 263 NLRB 127 (1982) (holding that the Board would no longer set aside an election on the basis of a party’s misleading statements during the election campaign). 5 We thus disagree with the hearing officer’s conclusion that Loder’s statements were “innocuous” with regard to the message about the Board’s neutrality. We thus find Ryder Memorial Hospital, 351 NLRB 214 (2007), instructive. There, the Board addressed the message conveyed by the distribution of altered sample ballots. The Board revised the disclaimer language it requires on such ballots to (a) more clearly explain the Board’s neutrality in the election process and (b) dis- claim any involvement on the part of the Board in the alteration of any sample ballot. In addition, the Board held that the distribution of an altered sample ballot with the disclaimer language deleted would thereafter be treated as per se objectionable rather than examined on a case-by-case basis to determine whether the particular alteration would have a tendency to mislead voters about the Board’s neutrality. Ryder, supra at 216 fn. 13. Here, Loder’s statements effectively conveyed the same kind of message the Board was so concerned about in Ryder—i.e., that the Board was informing employees that it was not entirely neutral in the election process. Loder donned a false cloak of Board authority when ask- ing employees to reveal how they intended to vote. By purporting to speak for the Board in this manner, Loder’s communication went beyond the realm of typical cam- paign propaganda which employees are “capable of rec- ognizing . . . for what it is.” Midland, supra at 132. In- deed, her comments violated the fundamental policy un- derlying Ryder: that any communication purporting to come from the Board “effectively preclude any reasona- ble inference that the Board favors or endorses any choice in the election.” Ryder, supra at 216.6 Loder’s comments, at a minimum, did not preclude such an infer- ence.7 We find that Loder’s comments were made to a suffi- cient number of employees (two) to require setting aside the election here given the three-vote margin of the Un- ion’s victory. For all of those reasons, we sustain the Employer’s ob- jection to the election, and shall direct that a new election be held. 6 The Board takes a similar approach to communications actually coming from its agents. See, e.g., Glacier Packing Co., 210 NLRB 571, 573 (1974) (setting aside an election because a Board agent’s conduct reasonably suggested that the Board opposed the employer). 7 We note that Loder’s questions alone, had she not misrepresented on whose behalf she was asking them, would not have been objectiona- ble. See Plant City Welding & Tank Co., 119 NLRB 131, 133–134 (1957).