Head Ski Co., Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1971

192 N.L.R.B. 217 (N.L.R.B. 1971)

HEAD SKI COMPANY, INC. 217
Head Ski Company; Inc. and Teamsters Local Union
No. 311, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America . Case 5-RC-7550
July 23, 1971
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, BROWN, AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties on February
17, 1971, an election by secret ballot was conducted
on April 2, 1971, under the direction and supervision
of the Regional Director for Region 5, among the
employees in the unit described below. At the
conclusion of the balloting, the parties were furnished
a tally of ballots, which showed that of approximately
341 eligible voters, 332 ballots were cast, of which 169
were for, and 161 were against, the, Petitioner, and 2
ballots were challenged. The challenged ballots were
insufficient in number to affect the results of the
election. Thereafter, the Employer filed timely objec-
tions to conduct, affecting the results of the election.
In accordance with the Board's Rules and Regula-
tions, Series 8, as amended, the Regional Director
conducted an investigation of the objections and, on
June 2, 1971, issued his Report on Objections, in
which he recommended that Objections 1, 2, 3, and 5
be overruled and that a hearing be held with respect to
Objection 4. Thereafter, the Petitioner filed excep-
tions to the Regional Director's recommendation with
respect to Objection 4 and a brief in support thereof.
The Employer filed a Memorandum in Support of the
Regional Director's Recommendations on Hearing.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The Petitioner is a labor organization which
claims to represent certain employees of the Employ-
er.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
i By letter of July 7, 1971, addressed to Board Chairman Miller, the
Employer also requested a hearing to determine whether the Union
engaged in such misconduct following the election as to require remedial or
punitive action against it. The Petitioner, by letter to Chairman Miller
dated July 8, 1971, opposed the Employer's request. Copies of the
foregoing communications were sent to all parties and have been
considered by the Board . The Employer's request is hereby denied as it
raises issues which can more appropriately be resolved in an unfair labor
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. In accordance with the stipulation of the
parties, we find that the following, employees consti-
tute a unit appropriate for the purpose of bargaining
collectively within the meaning of Section 9(b) of the
Act:
All production and maintenance employees in-
cluding shipping and receiving employees, jani-
tors, inspectors, leadmen, engineering-technicians,
service department employees, -plant clerical em-
ployees, ski mechanics and print shop employees
employed at the Employer's plant in Timonium,
Maryland; but excluding salesmen, office clerical
employees, service department clerical employees,
draftsmen, professional employees, guards and
supervisors as defined in the Act.
5. The Board has considered the Regional, Direc-
tor's Report on Objections, the Petitioner's exceptions
and brief,, the Employer's memorandum, and the
entire record in this case. For-the reasons discussed
below, we disagree with the Regional Director's
recommendation that a hearing is needed to resolve
Objection 4.2
The Employer's Objection 4 alleges that-Petitioner
interfered with the election by threatening, coercing,
and intimidating employees into voting for the Union.
In support of this objection, the Employer produced
two employee witnesses who testified that they were
threatened by fellow employee Ed Fishpaw with
physical harm and property damage if, after the
Union won the election and if it thereafter called a
strike, they crossed the picket line.
The tenor of Fishpaw's comments is not disputed.
However, no evidence was offered to show that
Fishpaw was an agent of the Petitioner and the
Employer does not so contend. Rather, the Employer
takes the position that Fishpaw's status is irrelevant
since his conduct, particularly when viewed in light of
postelection events, created an atmosphere of fear
and confusion among the employees which destroyed
the "laboratory conditions" required for conducting
Board elections. In addition, the Employer argues
that, following the election (in the course of a strike
which began on May 18,1971), the Petitioner in effect
condoned and adopted Fishpaw's preelection con-
duct by engaging in the type of violence which
Fishpaw had threatened.
The Regional Director found that the evidence,
practice proceeding.
2 In the absence of exceptions thereto, we adopt pro forma the Regional
Director's recommendations that Employer's Objections 1, 2, and 3 be
overruled. The Employer's exception to the Regional Director's findings
and recommendations with respect to Objection 5 raises no substantial or
material issues of fact or law which would warrant reversal of the Regional
Director's findings and recommendation or require a hearing.
192 NLRB No. 57
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"including alleged post-election conduct similar or
identical to the alleged preelection threats," required a
hearing to determine whether an atmosphere of fear
so permeated the period before the election as to have
effectively destroyed the conditions required by the
Board for a free and uncoerced election. We disagree
that a hearing is required here.
It is axiomatic that the Board, in considering
objections to an election, looks only to evidence of
conduct which occurred between the time the petition
is filed and the election is held.3 Accordingly, there is
no basis here for considering evidence of alleged
misconduct which occurred some 6 weeks or more
after,the election to determine whether the preelection
atmosphere was fraught with fear-and coercion. Those
incidents could have no impact on the votes cast by
the employees and cannot show an effect on the
election atmosphere. Considering only the alleged
preelection misconduct, therefore, the Employer's
evidence, even if fully credited, would establish that
one rank-and-file employee threatened' two of his
fellow employees with physical harm and/or property
damage in a hypothetical situation, i.e., if, after the
Union won the election, it called a strike and the
employees crossed the picket line. These threats,
therefore, even though made in the presence of other
employees, were the acts of a single employee; they
3 Goodyear Tire and Rubber Company, 138 NLRB 453.
4 The Great Atlantic and Pacific Tea Company, Inc., 177 NLRB No. 126.
were not made by a union agent; and they were
unrelated to how the employees voted in the election.4
In view, of these circumstances, we find that the
Employer's objection based on alleged preelection
threats is without merit and no useful purpose would
be served by holding a hearing thereon. Accordingly,
we shall issue the appropriate certification.
As the Petitioner has received a majority of the
ballots cast in the election, we shall certify the
Petitioner as the collective-bargaining representative
in the unit found appropriate, above.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Teamsters Local Union
No. 311, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of, America, has been designated and selected by a
majority of the employees at the Employer's Timoni-
um, Maryland, plant in the unit found appropriate, as
their representative for the purpose of collective
bargaining, and that, pursuant to Section 9(a) of the
Act, the said organization is the exclusive representa-
tive of all such employees for the purposes of
collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment.