ITT Consumer Services Corp.

National Labor Relations Board - Board Decisions

Mar 2, 1973

202 N.L.R.B. 65 (N.L.R.B. 1973)

APCOA DIV.-ITT CONSUMER SERVICES 65
Apcoa Division-ITT Consumer Services Corporation
and Teamsters Local Union # 769, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Petitioner. Case 12-RC-3951
March 2, 1973
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted under the direction and supervision of the
Regional Director for Region 12 on December 15,
1971, among the employees in the unit described
below. The tally of ballots showed that, of approxi-
mately 57 eligible voters, 54 cast ballots, of which 37
were for, and 16 were against, the Petitioner, and 1
was challenged. The challenged ballot is insufficient
to affect the results of the election.
On December 20, 1971, the Employer filed timely
objections to conduct affecting the results of the
election. In accordance with the Rules and Regula-
tions of the National Labor Relations Board, Series
8, as amended, the Regional Director conducted an
investigation and on February 25, 1972, issued and
duly served on the parties his Report on Objections
to the election and recommendations to the Board.
In his report, the Regional Director concluded that
Objections 1, 2, 3, and 5 were meritorious and
recommended that they be sustained, that the
election be set aside, and that a second election be
directed. Petitioner submitted a motion to reopen the
record which the Regional Director denied. Thereaft-
er, Petitioner filed timely exceptions to these findings
and recommendations and appealed from the Re-
gional Director's refusal to reopen the record.
On June 14, 1972, the Board issued an Order
directing a hearing with respect to Employer's
Objections 1, 2, 3, and 5, and on July 20, a hearing
was held before Hearing Officer Melvin R. Hutson.
i If our dissenting colleague's characterization of the events surrounding
the election were , in fact, supported by the record, we might be more
inclined to accept his position The record, however, will not support-in-
deed , it contradicts-such a characterization For example , the dissent
ignores several facts-the anonymous calls to Manager Falbo continued
after the election, the supervisors who were subjected to harassment did, in
fact, present the Employer's position to the employees by sending campaign
letters and speaking with small groups of employees until a day or two
before the election ; to the somewhat limited extent that they knew of the
harassment against the supervisors , the employees assumed that these acts
were committed by several employees who had been discharged several
months earlier, and the one employee who received anonymous calls
received them both before and after joining the Union and blamed them on
previously discharged employees, testifying that he cast his vote without
fear. Thus, not only is the third party conduct here not attributable to the
On September 11, 1972, the Hearing Officer issued
his report, attached, in part, hereto as the Appendix,
recommending that the Employer's objections be
overruled and that a Certification of Representative
be issued. On October 10, 1972, the Employer filed
exceptions to the report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. Upon the entire record in this case,
the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All cashiers (toll collectors), gate attendants,
runners (hikers), lot cleaner-valet van driver and
ticket collectors employed by the Employer at the
Miami, Florida International Airport, excluding
all office clerical employees, watchmen, guards
and supervisors as defined in the Act.
The Board has considered the Hearing Officer's
report and recommendations and the Employer's
exceptions thereto and hereby adopts the Hearing
Officer's findings and recommendations.' Accord-
ingly, as the tally of ballots shows that the Petitioner
has received a majority of the valid ballots cast, we
shall certify it as the exclusive bargaining representa-
tive for the employees in the appropriate unit.2
Petitioner , but the employees specifically attributed such conduct to the
employees who had been discharged previously Clearly, the employees did
not in any way relate these acts of harassment , beginning prior to the
Union's petition for certification and continuing after the election, to the
Union 's campaign. Such conduct could not possibly, therefore, have had
any coercive or disruptive effect on the election nor could it have rendered
impossible the employees' free expression of choice of representation Thus,
under these circumstances the anonymously created conduct is insufficient
to support a finding that the employees were denied the expression of a free
choice as to warrant setting aside the election . N LR B v Monroe Auto
Equipment Co, 470 F 2d 1329 (C A 5, Dec 12, 1972), Bush Hog, Inc v
NLRB , 420 F 2d 1266, 1269 (C.A. 5)
2 The Employer requested oral argument This request is hereby denied
as the record, the exceptions, and the beefs adequately present the issues
and positions of the parties
202 NLRB No. 5
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Teamsters Local Union
#769, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America and that, pursuant to Section 9(a) of the
National Labor Relations Act, as amended, the said
labor organization is the exclusive representative of
all the employees in the unit found appropriate
herein for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment,
and other conditions of employment.
CHAIRMAN MILLER, dissenting:
The record here evidences that this election
campaign was marked by a deliberate campaign of
vandalism, harassment, and intimidation directed at
one management representative and a more limited,
but similar and no less dramatic, attempt to
intimidate a second management representative. It is
also obvious that the employees in the unit knew of
the hooliganism that was taking place. Its connection
with the election was demonstrated by the painting
of the figure "15" on one management representa-
tive's car and the other's sidewalk. (December 15 was
the election date.)3
We do not know who engaged in these regrettably
vicious tactics. We do know that they were effective
in intimidating the affected management representa-
tives into discontinuing their active role in manage-
ment's attempts to express its views to employees
about the election. We do not know the extent to
which employees may have believed that they, too,
might be subjected to like treatment at the hands of
anonymous union-supporting fanatics if they should
choose to speak out against the Union.
We do know-or at least I know-that an election
held in that kind of atmosphere cannot be said to
have been held under laboratory conditions.
I would direct a second election.
3 The majority nevertheless concludes , in the face of these facts , that the
employees did not in any way relate these acts of harassment to the election
campaign'