Crown Chevrolet Co.

National Labor Relations Board - Board Decisions

Apr 10, 1981

255 N.L.R.B. 826 (N.L.R.B. 1981)

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crown Chevrolet Co. and C. Lee Barnes, Petitioner,
and Automobile Salesmen's Union, Local No.
1095, affiliated with United Food and Commer-
cial Workers International Union, AFL-CIO.
Case 32-RD-235
April 10, 1981
DECISION AND DIRECTION
The National Labor Relations Board has consid-
ered the determinative challenges and objections to
a decertification election held on May 30, 1980,1
and the Regional Director's report recommending
disposition of same. The Board has reviewed the
record in light of the exceptions and brief2 and
hereby adopts the Regional Director's findings and
recommendations only to the extent consistent
herewith.
The Union's Objections 3 and 7 allege that the
Employer induced its employees to vote for decer-
tification of the Union by promising benefits to
them. The Regional Director's investigation dis-
closed that the Employer conducted a preelection
meeting of eligible voters approximately 28 hours
before the election, at which its lawyer informed
the employees that, even if the Union were decerti-
fied, the contractual wage rates would still be en-
forceable against the Employer under California
law and that, if the Union were decertified, the
Employer intended to implement its last collective-
bargaining proposals relating to hours, night open-
ings, and holiday work. In concluding that the
statement did not amount to objectionable conduct,
the Regional Director stated that, in the absence of
other evidence,
. . . the statements . . . merely reflected the
Employer's attorney's opinion concerning the
enforceability of the Employer's contract until
its stated expiration date, regardless of the out-
come of the decertification election, and the
Employer's lawful right to implement changes
The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was four for and four against con-
tinued representation by the Union. There were three challenged ballots,
a sufficient number to affect the results of the election.
2 In the absence of exceptions, we adopt pro forma the Regional Dire-
tor's recommendation that the Union's Objections 1, 2, 4. 5, 6, and 8 be
overruled in their entirety and that the three challenged ballots be opend-
ed and counted.
On September 17, 1980, the Union filed with the Board a motion to
remand this proceeding to the Regional Director for further investiga-
tion. On September 29, 1980, the Employer filed with the Board a re-
sponse in opposition to the motion to remand. The motion and accompa-
nying affidavit of Richard Salvaressa, a union officer, allege that the em-
ployees in the unit in which the decertification election was conducted
were unwilling to cooperate in the Regional Director's original investiga-
tion because of their fear of employer reprisals. Neither the motion nor
the affidavit contains specific allegations of conduct by the Employer
that may have had such an inhibiting effect. The motion to remand is
therefore hereby denied as it raises no evidentiary issues warranting fur-
ther investigation.
255 NLRB No. 108
in employees' working conditions in the ab-
sence of any obligation to bargain with the
Union.
We disagree with the Regional Director's char-
acterization of the Employer's promise to imple-
ment its last collective-bargaining proposals as to
scheduling and holiday work.3 Unlike the Regional
Director, we construe the statement as a promise
of new or increased benefits sufficiently objection-
able to warrant directing a new election in this
case. In the vast majority of cases, decertification
proceedings occur at a time when the incumbent
union is negotiating a new contract with the em-
ployer. Under such circumstances, if an employer
promises to implement its latest collective-bargain-
ing proposal, the clear implication is that the em-
ployer has made concessions in negotiating sessions
that represent an increase in prior contractual bene-
fits. Such a statement, therefore, represents more
than a promise to maintain the status quo and con-
stitutes a promise of increased benefits if the em-
ployees vote against the Union.
Accordingly, we shall direct the Regional Direc-
tor to open and count the challenged ballots and, if
the results of the election conducted on May 30,
1980, disfavor the Union, to conduct a new elec-
tion.
DIRECTION
It is hereby directed that, as part of his investiga-
tion to ascertain whether the Union shall continue
as representative for the purpose of collective bar-
gaining with the Employer, the Regional Director
for Region 32 shall, according to the Board's Rules
and Regulations, within 10 days from the date of
this Decision and Direction, open and count the
ballots of C. Lee Barnes, Linda Bell, and Jim Kit-
tredge, and cause to be served upon the parties a
revised tally of ballots, including the count of the
ballots of Barnes, Bell, and Kittredge. In the event
that the revised tally of ballots shows that the
Union has received a majority of the valid ballots
cast, the Regional Director shall issue the appropri-
ate certification of representative.
In the event that the revised tally of ballots
shows that the Union has not received a majority
of the valid ballots cast, a second election by secret
ballot shall be conducted among the employees in
the unit found appropriate, at such time as the Re-
gional Director deems appropriate. The Regional
Director for Region 32 shall direct and supervise
3 We agree that, in the context of a decertification election, an employ-
er does not promise new or increased benefits by advising its employees
that it intends to maintain the status quo under an existing contract. El
Cid. Inc., 222 NLRB 1315, 1316 (1976). See also Ellex Transportation, Inc.
(Formerly Hugh Breeding. Inc.). 217 NLRB 750 (1975).
CROWN CHEVROLET CO. 827
the election, subject to the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended. Eligible to vote are those in the unit who
were employed during the payroll period ending
immediately before the date of issuance of the
Notice of Second Election, including employees
who did not work during that period because they
were ill, on vacation, or temporarily laid off. Also
eligible are employees engaged in an economic
strike which commenced less than 12 months
before the election date and who retained their
status as such during the eligibility period and their
replacements. Those in the military services of the
United States may vote if they appear in person at
the polls. Ineligible to vote are employees who
have quit or been discharged for cause since the
designated payroll period and employees engaged
in a strike who have been discharged for cause
since the commencement thereof, and who have
not been rehired or reinstated before the election
date, and employees engaged in an economic strike
which commenced more than 12 months before the
election date and who have been permanently re-
placed. 4 Those eligible shall vote whether or not
they desire to be represented for collective-bargain-
ing purposes by Automobile Salesmen's Union
Local No. 1095, affiliated with United Food and
Commercial Workers International Union, AFL-
CIO.
4 [Excelsior footnote omitted from publication.]