John W. Galbreath & Co.

National Labor Relations Board - Board Decisions

Apr 29, 1988

288 N.L.R.B. 876 (N.L.R.B. 1988)

876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
John W. Galbreath, d/b/a John W. Galbreath &
Company and Service Employees International
Union, Local 158-A, AFL-CIO, Petitioner.
Case 9-RC-13867
April 29, 1988
SUPPLEMENTAL DECISION AND
ORDER REMANDING TO THE
REGIONAL DIRECTOR
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
Pursuant to authority granted it under Section
3(b) of the National Labor Relations Act, a three-
member panel has considered objections to an elec-
tion conducted October 9, 1981, 1 and the Regional
Director's supplemental report 2 recommending dis-
position of the same. The Board has reviewed the
record in light of the exceptions and briefs and
adopts the Regional Director's findings and recom-
mendations only to the extent consistent 3 with this
decision.
1. The Regional Director sustained the Petition-
er's Objection 9 recommending setting aside the
election on this basis and on the basis of certain
"Other Conduct" of the Employer not specifically
alleged in the Petitioner's objections. We disagree.
The Petitioner's Objection 9 relates to statements
printed in a pamphlet distributed by the Employer
in the weeks immediately preceding the election.
Specifically, the Petitioner alleges that the follow-
ing statements misrepresented its ability to repre-
sent the employees:
[1] Q. You mean the union is going to speak
for me?
A. In almost every case, there's language on
the cards that says, "I authorize the union to
become the exclusive bargaining representative
for terms and conditions of employment." In
effect, you've lost the ability to speak for
yourself.
[2] Q. What else could I lose if the union
gets in?
A. Most union constitutions call for dues, as-
sessments, fines, and even special assessments.
1 The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was 12 for and 15 against the Peti-
tioner. There was one challenged ballot, an insufficient number to affect
the results.
2 On October 15, 1981, the Petitioner filed timely objections to the
election On November 20, 1981, following an investigation, the Regional
Director issued his report recommending that the election be set aside on
the basis of conduct alleged in the Petitioner's Objection 7. The Employ-
er filed timely exceptions and on February 3, 1983, the Board overruled
the objections and remanded the case to the Regional Director for con-
sideration of the remaining objections 266 NLRB 96 (1983)
3 In the absence of exceptions, we adopt the Regional Director's rec-
ommendation that Objections 1, 3, 4, 5, 6, and 8 be overruled
If (members) violate any provision of that
union constitution or bylaws they're subject to
discipline by the union. It could be a fine, a
suspension, or expulsion. If any employee is
expelled from the union and there's a union
shop clause in the contract, then the employee
has just lost his job.
[3] Q. If there is a strike, what happens?
A. If there's a strike for economic reasons,
which included anything dealing with working
conditions, we would have the right to find
people to work in the place of strikers . . .
those employees who have been replaced do
not get their jobs back just because the strike
ends.
Q. You mean strikers can lose their jobs?
A. You bet they can. However, they are not
discharged, technically speaking. But they're
not working. . . .
The Regional Director found that first statement
constituted a threat in contravention of Section 9(a)
of the Act to withdraw an existing benefit, namely,
the right of employees to deal directly with their
employer in certain instances. In so finding, he
relied on then existing Board precedent. 4 Howev-
er, in Tr-Cast, Inc., 274 NLRB 377 (1985), which
involved a similar statement, the Board announced
the reversal of those precedents and stated:
There is no threat, either explicit or implicit,
in a statement which explains to employees
that, when they select a union to represent
them, the relationship that existed between the
employee and the employer will not be as
before. This is especially so, as implied in the
Employer's statement here, where a collective-
bargaining agreement is negotiated. Section
9(a) thus contemplates a change in the manner
in which employer and employee deal. For an
employer to tell its employees about this
change during the course of an election cam-
paign cannot be characterized as an objection-
able retaliatory threat to deprive employees of
their rights, but rather is nothing more or less
than permissible campaign conduct. [Footnotes
omitted.]
As in Tr-Cast, Inc., the statement here simply
explains that the relationship between the Employ-
er and the employees will change in the event that
the employees select a statutory bargaining repre-
sentative, and it is therefore permissible campaign
conduct.
4 Greensboro News Co., 257 NLRB 701 (1981), and Associated Roofing
Co., 255 NLRB 1349 (1981).
288 NLRB No. 95
JOHN W. GALBREATH & CO 877
2. The Regional Director concluded that the
second objected-to statement constituted "a veiled
threat of discharge of an employee if the employee
is expelled from the Petitioner, for any reason, and
there is a contract with a union security caluse."
Contrary to the Regional Director, we do not find
the statement to be objectionable conduct. First, to
the extent that it is alleged simply to be a misstate-
ment of the law, it does not constitute objection-
able conduct because the mere fact that a party
makes an untrue statement, whether of law or fact,
is not grounds for setting aside an election. River-
edge Hospital, 264 NLRB 1094 (1982); Midland Na-
tional Life Insurance, 263 NLRB 127 (1982). Of
course Midland and Riveredge do not immunize co-
ercive statements; but we do not believe that this
statement rises to the level of a threat by the Em-
ployer to discharge employees on the basis of
union considerations. Although an employer has a
role to play in the administration of a contractual
union-security provision, the Employer's statement
at issue here, setting forth its views of penalties the
Union might, if elected, impose on those who vio-
lated its constitution or bylaws, could not reason-
ably be construed as a threat by the Employer that
it would, or even could, unilaterally take action
against employees under a union-security provi-
sion.8
3. Similarly, we do not find the third statement
to be objectionable. Rather, consistent with the
Board's decision in Eagle Comtronics, Inc., 263
NLRB 515 (1982), we find that it is an unobjection-
able, incomplete statement of economic strikers'
Laidlaw rights. 8 In Eagle Comtronics, the Board
considered an equally truthful but incomplete state-
ment regarding the permanent replacement of strik-
ing employees (i.e., that in the case of an economic
strike, strikers "could be replaced with applications
on file"). There, as here, the employer did not
inform its employees about their rights to reem-
ployment, but the Board concluded that the em-
ployer was not required to do so. The Board, how-
ever, distinguished that case from others in which
employers "went beyond informing the employees
of the risk of being permanently replaced by telling
them they would lose their jobs." 263 NLRB at 516
5 Member Cracraft, although agreeing that misstatements of law or
fact may fall within the Midland rule, disagrees with her colleagues re-
garding the coercive nature of the Employer's assertion here that an em-
ployee will lose his job upon expulsion from the Union if there is a
union-shop clause in the contract. In agreement with the Regional Direc-
tor, she would find the statement objectionable as a veiled threat of dis-
charge. As the document containing this statement was circulated by the
Employer to all unit employees m the 2 weeks before the election, she
would order a new election on the basis of that statement alone.
6 Laidlaw Corp., 171 NLRB 1366 (1968).
fn. 8 (emphasis in original). 7 The instant case is dis-
tinguishable, as well. Although the statement print-
ed in the Employer's pamphlet speaks in terms of
job loss, it adds that employees are "not dis-
charged, technically speaking, [Nut they're not
working." In our view, this addition sufficiently
dispels any impression that employees who engage
in an economic strike are absolutely terminated. At
most the statement may leave some employees puz-
zled about how economic strikers can return to
work, but it does not imply that they are dis-
charged. Indeed, by stating that they are "not dis-
charged" the Employer's statement implies that
they retain their, status as employees. Therefore, we
find that the statement does not coerce the employ-
ees in their expression of free choice in the elec-
tion, and we overrule Objection 9.8
4. The Regional Director also found that "Other
Conduct," which came to light during the course
of his investigation, warranted setting aside the
election. More precisely, he found that the Em-
ployer coercively interrogated an employee during
an incident that occurred when the building man-
ager and other supervisory personnel encountered
the employee in an elevator. The Employer's build-
ing manager told a leadperson to give the employ-
ee a "vote no" sticker, and the leadperson pasted
two of them on the employee's jacket. The build-
ing manager then commented that the employee
"looked better." The same employee later saw co-
workers wearing the stickers. We agree with the
Regional Director's analysis of this incident insofar
as similar conduct has been found to be a form of
unlawful interrogation. 8 Further, despite the ab-
sence of evidence that other employees wearing
antiunion stickers have been subjected to similar
treatment, the incident cannot be deemed to be iso-
In Webel Feed Mills Co., 217 NLRB 815, 818 (1975), the employer
stated," employees who go on strike can be replaced with other em-
ployees, and when they are replaced, they have no job." In Hicks-Ponder
Co, 186 NLRB 712, 719 (1970), the employer told employees that it had
a right "to continue to operate its plant and replace the striker with other
employees, in which event the strikers would lose their jobs and have no
right to return to work after the strike was over as long as the replace-
ment remained employed." (Emphasis added )
8 Member Babson, in overrulmg this portion of Objection 9, agrees
with his colleagues that the additional language in the Employer's pam-
phlet that employees are "not discharged, technically speaking, [Mut
they're not working" sufficiently dispels any impression that employees
who engage in an economic strike are terminated. Therefore, he finds it
unnecessary in the context here to pass on the distinction drawn by the
Board m fn 8 of Eagle Comtronies, supra, and relied on by his colleagues
here
In its exceptions, the Employer contends that the Board's policy on
misrepresentations applies to the striker replacement statements. We dis-
agree In our view, ostensible threats should not be analyzed under Mid-
land National misrepresentation standards. Unlike the Employer's state-
ment concerning the effect of union expulsion in a union-shop setting,
discussed above, the Employer is the only party in a position to perma-
nently replace economic strikers
9 Pillowtex Corp., 234 NLRB 560 (1978)
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lated in view of the size of the unit (30 employees)
and the relative closeness of the vote.' °
In spite of our agreement with the analysis of the
objectionable character of the conduct, however,
we decline to sustain the objection and instead
remand the issue to the Regional Director for a de-
termination of whether this incident may properly
be considered as objectionable conduct under the
principles of American Safety Equipment Corp., 234
NLRB 501 (1978), and Dayton Tire & Rubber Co.,
234 NLRB 504 (1978), as clarified in Burns Security
Services, 256 NLRB 959 (1981). Under the rule of
those cases, an election may be set aside on the
basis of objectionable conduct discovered by the
Regional Director in the course of his investigation
of a party's timely filed election objections. How-
ever, if the evidence of misconduct unrelated to the
timely filed objections comes to the Regional Di-
rector's attention during the investigation at the ini-
tiative of the objecting party after the time for
filing objections has expired, the new evidence
should not be considered as a basis for setting aside
the election unless the objecting party has provided
clear and convincing proof that the evidence was
"not only newly discovered, but also previously
unavailable." Burns Security Service, supra at 960.
See also Rhone-Poulenc, Inc., 271 NLRB 1008
(1984). We cannot tell from the Regional Direc-
tor's statement in his report concerning the "Vote
No" sticker incident which category this comes
within." If, on remand, the Regional Director
clarifies the basis for his receipt of the evidence
and shows the evidence to have been properly re-
ceived under American Safety Equipment, then the
election should be set aside on the basis of this inci-
dent. If not, then this objection should be over-
ruled.
5. Finally, in his Report on Objections, the Re-
gional Director recommended that a hearing be
conducted to resolve factual issues raised with re-
spect to Objection 2, which alleges that in the 2
10 Cf Clark Equipment Co., 278 NLRB 498, 505 (1986), in which
8(a)(1) violations directed at 1 or 2 employees did not warrant setting
aside an election m a unit of more than 800 employees.
11 At p 11 of his report, the Regional Director states, "Although not
specifically alleged in the Objections, the Petitioner furnished evidence
[about the sticker incident]."
weeks before election the Employer's building
manager threatened employees with loss of benefits
if the Petitioner won the election and informed em-
ployees that any negotiations would start from
zero. The Employer denies making all such state-
ments. Inasmuch as the statements may, in the con-
text alleged, constitute impermissible conduct that
necessitates the conduct of a new election, 12 we
shall remand this proceeding to the Regional Di-
rector in order that a hearing be held on Objection
2, if the "Other Conduct" objection is overruled
for reasons set forth in Burns Security Services,
supra.
ORDER
It is ordered that this proceeding be remanded to
the Regional Director for Region 9 for the purpose
of: (1) clarifying the circumstances surrounding the
revelation of the acts referred to as "Other Con-
duct" and issuing a report and recommendations
thereon; and if this objection is overruled pursuant
to Burns Security Services, 256 NLRB 959 (1981),
(2) holding a hearing before a duly designated
hearing officer for the purpose of receiving evi-
dence to resolve issues raised with respect to the
Petitioner's Objection 2. The Regional Director is
authorized to arrange a hearing and to issue a
notice of hearing.
IT IS FURTHER ORDERED that the hearing officer
designated for the purpose of conducting the hear-
ing shall prepare, issue, and serve on the parties a
report containing resolutions of the credibility of
witnesses, findings of fact, and recommendations to
the Board concerning the disposition of the objec-
tion. Within 10 days from the date of issuance of
the report, either party may file with the Board in
Washington, D.C., an original and seven copies of
exceptions to the report. Immediately upon the
filing of exceptions, the party filing them shall
serve a copy on the other party and shall file a
copy with the Regional Director. If no exceptions
are filed thereto, the Board will adopt the recom-
mendations of the hearing officer.
12 See Oklahoma City Collection, 263 NLRB 79 (1982), and Centre En-
gineering, 246 NLRB 632 (1979).