Allen Tyler & Son, Inc.

National Labor Relations Board - Board Decisions

Jan 11, 1978

234 N.L.R.B. 212 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allen Tyler & Son, Inc. and James Henry McCready,
Petitioner, and International Union of Bricklayers
and Allied Craftsmen, Local No. 8 of Maryland,
AFL-CIO. Case 5-RD-569
January 11, 1978
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS JENKINS, PENELLO, AND MURPHY
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered objections in an
election held on June 15, 1977,1 and the Regional
Director's report recommending disposition of same.
The Board has reviewed the exceptions and brief and
hereby adopts the Regional Director's findings2 and
recommendations.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for International Union of
Bricklayers and Allied Craftsmen, Local No. 8 of
Maryland, AFL-CIO, and that said labor organiza-
tion is not the exclusive representative of all the
employees, in the unit herein involved, within the
meaning of Section 9(a) of the National Labor
Relations Act, as amended.
MEMBER MURPHY, dissenting:
I cannot agree with my colleagues in adopting the
Regional Director's recommendation to overrule
Objection 2. Here, employee Gary Brohawn was
selected as a union observer but withdrew under
"highly suspicious circumstances" and thereafter
failed even to vote. Yet, the Regional Director
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was: 15 for, and 28 against, the Union;
there were 13 challenged ballots, a number insufficient to affect the results.
2 We do not agree with the intimation of our dissenting colleague that the
Regional Director abused his discretion by overruling Objection 2. The
action by the Regional Director is consistent with the National Labor
Relations Board Casehandling Manual, Part Two, Representation Proceed-
ings, sec. 11392.5, which states in pertinent part:
It is Ithe duty of] the party filing objections . .. to furnish evidence
sufficient to provide a prima facie case in support thereof before the
Region is required to investigate the objections. [Emphasis supplied.]
Clearly, the Union has failed to present probative evidence sufficient to
provide a primafacie case in support of its allegations. In the absence of any
apparently did not attempt to interview him. I would
remand the case to the Regional Director with
directions that he arrange for such an interview and
further investigation, including the holding of a
hearing if that thereafter seems appropriate.
A witness states that Brohawn telephoned to say he
would not act as the Union's observer. Brohawn
allegedly went on to say that Respondent's plant
superintendent, Harry Grunden, had approached
him at the jobsite and mentioned that he had heard
that Brohawn was to be the Union's observer. When
Brohawn confirmed this, Grunden allegedly said he
had nothing "against Brohawn personally, but
.... " The conversation apparently trailed off at
this point and Grunden left the area. Subsequently,
the Union lost the election by a vote of 20 to 43, not
counting challenged ballots. According to the Union,
Brohawn not only did not act as an observer but did
not even vote.
The Regional Director, relying largely on the
Union's failure to submit a statement from Brohawn,
recommends the objection be overruled. The sudden
withdrawal of an employee from acting as union
observer and his failure to cast a ballot - together
with some indication that the employee was threat-
ened - creates such a suspicious set of circum-
stances that the exercise of sound discretion requires
that the Regional Director interview the employee
involved - even in the absence of a supporting
statement from the Union.3 In such circumstances,
the Union's failure to obtain a statement from
Brohawn is understandable, for, if the hearsay
account of the incident is borne out of an investiga-
tion, Brohawn probably wanted nothing further to
do with the Union for fear of employer reprisal.
I would remand this proceeding to the Regional
Director for that purpose and for such additional
investigation as thereafter is appropriate.
probative evidence, we shall not require or insist that the Regional Director
conduct a further investigation simply on the basis of a "suspicious set of
circumstances."
3 My colleagues seem to feel that the only action the Board should take is
to compel a Regional Director to do what is minimally necessary, to comply
with the Casehandling Manual. It seems to me that they, and we, should be
held to a higher standard. Thus, where, as here, the procedures in the
Casehandling Manual arguably have been complied with, but nevertheless
the circumstances cry out for further investigation, the Regional Director
should make that investigation. If he fails to do so on his own volition, the
Board should compel him to do so. It is only in this way that we can
maintain the Board's reputation as an agency which is concerned with
substance rather than form. In other words, effectuate the policy of the Act
by assuring that our elections are conducted in an atmosphere in which the
employees are able to exercise a free and untrammeled choice.
212