KCRA-TV

National Labor Relations Board - Board Decisions

Aug 29, 1984

271 N.L.R.B. 1288 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
KCRA-TV and Peter A. Arakelian, Petitioner and
International Brotherhood of Electrical Work-
ers, Local 202. Case 20-RD-1759
29 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board, by a three-
member panel, has considered determinative chal-
lenges and objections to a combined mail and
manual ballot election held 1 December 1982 and
the hearing officer's report recommending disposi-
tion of them. The election was conducted pursuant
to a Stipulated Election Agreement. The tally of
ballots shows 63 for and 60 against the Union, with
3 challenged ballots, a sufficient number to affect
the results, and 1 void ballot; there are also 2 mail
ballots that were not counted at the conclusion of
the election.
The Board has reviewed the record in light of
the exceptions and briefs, and has decided to adopt
the hearing officer's findings and recommenda-
tions' only to the extent consistent with this Deci-
sion and Order.
1. The Employer operates a television station in
Sacramento, California. The Union's Objection 2
alleges that at an employee meeting on 29 Novem-
ber 1982, John Kelly, the station's owner, impliedly
promised to institute a grievance procedure similar
to one in effect at a banking system he owns if the
employees voted to decertify the Union. The hear-
ing officer, relying on Etna Equipment & Supply
Co., 243 NLRB 596 (1979), recommended that we
sustain this objection. The pertinent facts are as fol-
lows.
On 29 November 1982 John Kelly conducted an
employee meeting to discuss issues in the decertifi-
cation election. Several employees questioned
Kelly about the station's policies if the Union were
decertified. When Kelly refused to state what the
station's policies would be, the employees insisted
that he give them "a little bit of an idea." An em-
ployee then asked how the station would resolve
employee problems if there were no contractual
grievance procedure. Kelly replied that he could
not make any promises and that, while he would
give an example, he was "not saying that this is the
way it would happen." He explained that at the
River City Bank, a nonunion system of banks he
owned, he discussed employee complaints periodi-
I In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer's recommendations to overrule the challenges to the ballots of Robert
Johnston and D'Anne Ousley, to sustain the challenge to the ballot of
Randall Smith, and to overrule the Union's Objection 1.
271 NLRB No. 207
cally with an employee committee at an "informal
dinner-type meeting." As a result of these discus-
sions, Kelly said that sometimes the problems were
resolved and sometimes they were not.
We disagree with the hearing officer's findings
that this case is "remarkably similar" to Etna, and
that Kelly had impliedly promised the station's em-
ployees a new grievance procedure if the Union
were decertified. In Etna, the Board concluded
that an employer impliedly promised increased ben-
efits if the employees voted to decertify the union,
because the employer went to extraordinary efforts
to show that unrepresented employees at nonunion
mines had greater benefits than those enjoyed by
employees at its union mine. The employer's efforts
included preparing individually tailored charts for
each of its 40 employees, which compared the dif-
ferences in benefits between an unidentified non-
union pension and IRA plan, and their existing
union pension plan. Because the employees knew
that the employer operated a nonunion mine, the
Board set the election aside because "it seems very
difficult to believe the Employer would go to such
effort for each and every employee unless it intend-
ed the employees to believe the pension benefits
presented were more than a mere possibility."2
We find, instead, that Viacom Cablevision of
Dayton, 267 NLRB 1141 (1983), controls this case3
and that Etna is distinguishable for the following
reasons. First, Kelly on at least two occasions
during the meeting cautioned the employees that
he was not promising anything if the election re-
sulted in the Union's decertification. Second,
Kelly's reference to the grievance procedure at his
nonunion banks was a casual response to persistent
employee questioning that he give them "a little bit
of an idea" of station policies if the Union were de-
certified. His response is strikingly dissimilar to the
employer's calculated scheme in Etna of holding
three dinner meetings at which the greater pension
benefits of nonunion employees were emphasized,
culminating in the distribution to each employee of
an individually tailored chart comparing pension
benefits under the union and the nonunion plans.
Third, while the Union could emphasize the superi-
ority of the existing contractual grievance proce-
2 Etna Equipment & Supply Co., supra, 243 NLRB at 597. Member
Hunter notes that he did not participate in Etna Equipment and that the
discussion of the case herein does not indicate his approval or disapprov-
al of its result.
a In Viacom, the Board found no implied promise of increased benefits
where the employer truthfully advised the employees that some of its
nonunion employees received higher wages than they did, but repeatedly
refused to promise a wage adjustment should the employees vote to de-
certify the union. The Board emphasized that a comparison of benefits "is
not per se objectionable: the question is, was there a promise, either ex-
press or implied from the surrounding circumstances, that [benefits]
would be adjusted if the Union were voted out." Id., slip op. at 4.
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KCRA-TV
dure in resolving employee complaints, Kelly, in
response to employee questioning, could also ex-
plain that the station would continue to resolve em-
ployee complaints even in a nonunion setting by
giving an example of how this might be done.
For these reasons, we overrule the Union's Ob-
jection 2 and conclude that Kelly did not impliedly
promise the station's employees the grievance pro-
cedure in effect at his nonunion banks should the
employees reject the Union.
2. The Employer's Objections I and 2 allege that
the Regional Director improperly refused to count
the mail ballots cast by employees Carol Bland and
Susan Goldwater Gregory. The hearing officer
recommended that both ballots be counted, after
finding that the Regional Office properly sent mail
ballots to both employees. The pertinent facts are
as follows.
On 2 November 1982 the Regional Director ap-
proved the Stipulated Election Agreement, which
provided for an election in a unit consisting of cer-
tain of the station's employees at its Sacramento,
Stockton, Modesto, and San Francisco locations.
The parties agreed that the election would be held
at the Employer's Sacramento offices on I Decem-
ber 1982, and that the "San Francisco, Modesto
[and] Stockton employees will vote by U.S. Mail
under the direction and supervision of the Regional
Director." On 26 November 1982 the Employer's
attorney telephoned the Regional Office and re-
quested that the Board send mail ballots to Sacra-
mento employees Carol Bland and Susan Gold-
water Gregory. The Employer's attorney did not
seek the consent of either the Petitioner or the
Union or ask the Regional Office to seek their con-
sent before requesting the mail ballots. The Region-
al Office sent the mail ballots as requested and re-
ceived both back after the stipulation's deadline of
5 p.m. on 30 November 1982, but before the ballots
were counted at the conclusion of the manual elec-
tion. Neither mail ballot has been opened.
We disagree with the hearing officer and con-
clude that the Regional Director properly refused
to count the mail ballots Carol Bland and Susan
Goldwater Gregory cast. A party to an agreement
authorizing a consent election "is entitled to expect
that other parties and agents of the Board will dili-
gently uphold provisions of the agreement that are
consistent with Board policy and are calculated to
promote fairness in the election." 4 We will not set
aside an election for every breach of an election
agreement; rather, "election results should be over-
turned only if the breach is material or prejudicial,
in the sense that the conduct causing the breach
4 Summa Corp. v. NLRB, 625 F.2d 293, 295 (9th Cir 1980). Accord:
NLRB v. Granite State Minerals, 674 F 2d 101, 102 (Ist Cir. 1982.)
significantly impairs the fairness of the election
process." 5
We find that the Stipulated Election Agreement
was materially breached when the Board agent
sent mail ballots to two employees who were ineli-
gible to receive them. The parties intended, by
signing the stipulation, that the Sacramento em-
ployees had to cast their votes in person or not at
all, and that only the San Francisco, Modesto, and
Stockton employees could mail their ballots be-
cause of the distance in traveling to the Employer's
Sacramento office to cast their votes in person. Be-
cause the stipulation barred Sacramento employees
from voting by mail, the Board agent erred in
sending mail ballots to Carol Bland and Susan
Goldwater Gregory. Contrary to the hearing offi-
cer, the NLRB Casehandling Manual does not au-
thorize the action the Board agent took. Rather, it
provides that in a "mixed" manual-mail election,
"[m]ail ballots should not be sent to those who are
. . ill, either at home or in a hospital, are on va-
cation, or are on leave of absence due to their own
decision or condition."s Neither employee was en-
titled to a mail ballot under this provision because
Carol Bland's request was based on her leaving
town on vacation, and Susan Goldwater Gregory's
request was based on an illness in her family.
Any harm caused by the stipulation's breach was
further aggravated by the fact that the Employer's
attorney arranged for both employees to vote by
mail after a union shop steward had informed
Susan Goldwater Gregory previously that it
"wasn't possible" to vote by mail. Such an "ar-
rangement" may have created an appearance that
the Board was granting a special favor to the Em-
ployer. Under the circumstances, allowing Carol
Bland and Susan Goldwater Gregory to cast mail
ballots, especially without prior agreement of the
other parties, may have tended to destroy the con-
fidence of all parties in the Board's election proc-
ess.7
For these reasons, we overrule the Employer's
Objections 1 and 2 and conclude that the Regional
Director properly refused to count the mail ballots
employees Carol Bland and Susan Goldwater
Gregory cast.
While the mail ballots Carol Bland and Susan
Goldwater Gregory cast should not be counted, it
s Summa Corp. v NLRB, supra, 625 F.2d at 295. .LRB v. Granite
State Minerals, supra; New England Lumber Division of Diamond v.
NLRB, 646 F.2d 1, 3 (Ist Cir. 1981); Grant's Home Furnitshings, 229
NLRB 1305, 1306 (1977).
R NLRB Casehandling Manual (Part Two), Representation Proceed-
ings, Sec. 11336.1.
7 Member Hunter places no reliance on the foregoing discussion that
the Region's action may have tended to destroy the parties' confidence in
the election process.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is possible that, had the Board agent not erred in
sending them mail ballots, both of them would
have cast their votes in person. Even had both
voted in person, however, their votes would not
have been outcome determinative if either Robert
Johnston or D'Anne Ousley, whose ballots will be
opened and counted pursuant to this Decision and
Order, voted for the Union.8
Accordingly, we remand this case to the Region-
al Director to open and count the ballots of Robert
Johnston and D'Anne Ousley and to serve on the
parties a revised tally of ballots. If either Robert
Johnston or D'Anne Ousley voted for the Union,
the fact that the mail ballots of Carol Bland and
Susan Goldwater Gregory are not counted could
not affect the results of the election. Consequently,
the Board agent's mistake in sending them mail bal-
lots would be harmless error. In this event, the re-
vised tally of ballots would show that the Union
has secured a majority of the votes cast, and the
Regional Director should certify the Union.
On the other hand, if neither Robert Johnston
nor D'Anne Ousley voted for the Union, then the
^ As noted, the tally of ballots shows 63 votes for and 60 against the
Union. If either Robert Johnston or D'Anne Ousley voted for the Union,
the revised tally of ballots would show 64 votes for and 61 against the
Union. Even assuming Carol Bland and Susan Goldwater Gregory ap-
peared at the polls and voted against the Union, the tally of ballots would
be 64 votes for and 63 against the Union. Thus, their votes would not be
outcome determinative if either Robert Johnston or D'Anne Ousley
voted for the Union.
votes of Carol Bland and Susan Goldwater Greg-
ory would be outcome determinative, and the
Board agent's mistake cannot be dismissed as harm-
less error. In this event, the Regional Director
should set aside the election and conduct a second
election.
ORDER
It is ordered that the challenge to the ballot of
Randall Smith be sustained.
IT IS FURTHER ORDERED that the Regional Di-
rector for Region 20 shall, pursuant to the Board's
Rules and Regulations, within 10 days from the
date of this Order, open and count the ballots of
Robert Johnston and D'Anne Ousley, and thereaf-
ter prepare and cause to be served on the parties a
revised tally of ballots, including therein the count
of said ballots. In the event the revised tally of bal-
lots shows that the Union received a majority of
the votes cast and the mail ballots of Carol Bland
and Susan Goldwater Gregory are not determina-
tive of the election results, the Regional Director
shall certify the Union. However, in the event that
the revised tally of ballots shows that the mail bal-
lots of Carol Bland and Susan Goldwater Gregory
would be determinative of the election, the Region-
al Director shall set aside the election and hold a
second election.
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