Mountaineer Bolt

National Labor Relations Board - Board Decisions

Oct 31, 1990

300 N.L.R.B. 667 (N.L.R.B. 1990)

667
300 NLRB No. 73
MOUNTAINEER BOLT
1 While our dissenting colleague states that it is not his position that the
postelection conduct here alone might warrant setting aside the election, he
nevertheless would reverse the Regional Director’s rejection of the supple-
mental objections that raise the postelection conduct. He would do so because,
in his view, the postelection threats, if proven, may aid in interpretation of
the preelection threats. Events relevant to alleged objectionable conduct, how-
ever, need not themselves be asserted to be objectionable in order for evidence
concerning them to be admitted in a hearing on objections. Thus, assuming
arguendo that the alleged postelection threats would shed light on the alleged
preelection threats (a position seemingly at odds with Head Ski, supra), it is
not necessary to reverse the Regional Director’s rejection of the supplemental
objections in order for evidence concerning the alleged postelection threats to
be introduced at the hearing.
Mountaineer Bolt, Inc. and United Mine Workers
of America, Petitioner. Case 6–RC–10378
October 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 9, 1990, the Employer filed timely objec-
tions regarding an election held on March 2, 1990. On
March 22, 1990, after investigating the Employer’s
election objections, the Regional Director issued an
order directing hearing on the issue of whether new
employees had been threatened by the Union with loss
of their jobs if the Union did not win the election. On
March 30, 1990, the Employer filed supplemental ob-
jections alleging that after the election the Union con-
tinued to threaten new employees to intimidate them
and prevent them from testifying at the hearing. By
letter dated April 2, 1990, the Regional Director re-
jected the supplemental objections as untimely under
Section 102.69(a) of the Board’s Rules and Regula-
tions, which requires objections to be filed within 7
days after the tally of ballots has been prepared. Al-
though rejecting the supplemental objections, the Re-
gional Director, in his letter to the Employer, stated:
I would note that the issues you have raised as
Supplemental Objections to the Election are mat-
ters that may be properly explored at the post-
election hearing in order to establish the credi-
bility of such witnesses as may be called by either
party to testify. In addition, the allegations may
well be the basis for the filing of an unfair labor
practice charge.
On April 16, 1990, the Employer filed a request for
review of the Regional Director’s rejection of the sup-
plemental objections. In its request for review, the Em-
ployer argues that the Union’s postelection threats are
related to its preelection threats and jeopardize the
holding of a fair hearing.
The National Labor Relations Board, by a three-
member panel, has reviewed the record in light of the
request for review and adopts the Regional Director’s
ruling.
We find the Regional Director’s rejection of the Em-
ployer’s supplemental objections squarely supported by
Board precedent. In Head Ski Co., 192 NLRB 217
(1971), the Board reversed a Regional Director’s rec-
ommendation that a hearing be held on an allegation
that one employee threatened two others with physical
harm if they crossed the picket line, should the union
win the election and call a strike. The hearing was to
include evidence concerning the employer’s allegation
that the union had adopted these threats by engaging
in violence during a strike that began 6 weeks after the
election. In overruling the recommendation for a hear-
ing, the Board stated at 218:
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. Accord-
ingly, there is no basis here for considering evi-
dence 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 employ-
ees and cannot show an effect on the election at-
mosphere. [Fn. omitted.]
Similarly, in the present case, the threats alleged in the
supplemental objections could not have affected the
election because they were alleged to have occurred
after the election. Thus, the Regional Director’s rejec-
tion of the supplemental objections was proper.
That the alleged postelection threats are not a basis
for objections does not mean that no mention of them
may be made at the hearing. Indeed, the Regional Di-
rector specifically stated that they may be explored as
they relate to the credibility of witnesses at the hear-
ing. Thus, we agree with our dissenting colleague that
the alleged postelection conduct might bear on the
weight to be given to the testimony of the Employer’s
witnesses at the hearing on objections. Our disagree-
ment concerns only his apparent view that the alleged
postelection conduct itself may properly be considered
to be objectionable conduct that, if proven, would war-
rant setting aside the election.1
Our dissenting colleague also argues that the alleged
postelection conduct might warrant withholding certifi-
cation from the Union. The alleged threats of job loss
here, however, are far removed from the type of con-
duct that the Board has held warrants withholding cer-
tification from a union as the exclusive representative
of a bargaining unit. Cf. Teamsters Local 703 (Kenni-
cott Bros.), 284 NLRB 1125 (1987); Laura Modes Co.,
144 NLRB 1592 (1963). Accordingly, contrary to our
dissenting colleague, we find no basis for granting the
Employer’s request for review.
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer also alleged that affidavits from four employees concerning
the preelection threats, that were given to the Board’s Regional Office, had
been released by the Board to the Union.
2 Compare Holiday Inn Palo Alto-Stanford, 298 NLRB 521 (1990).
3 The Regional Director also suggested that the Employer could file unfair
labor practice charges on the basis of the alleged union threats. (No such
charges are now pending.) The difficulty with this approach is that, in this
case, it is wasteful of the Board’s scarce resources and of the parties’ time.
The charges would first have to be investigated by the Region and, if the Re-
gional Director believed they had merit, the Region would then issue a com-
plaint. Only then would the charges be consolidated with objections for hear-
ing before a judge and a hearing scheduled at some later time. Here, the Em-
ployer has chosen to raise the postelection threat issue as an objection so that
it can be considered along with similar objections at a hearing that the Re-
gional Director has already ordered. Because the focus of the ‘‘supplemental
objections’’ is the intimidation of witnesses who may appear at the hearing
on objections, the supplemental objections can easily be added to those to be
considered at the hearing.
4 The majority takes issue with what it characterizes as my ‘‘apparent view’’
that the postelection conduct here alone may warrant setting aside the election.
That is not my position. In this case, the postelection threats allegedly involve
a continuing course of threats, extending back before the election. In my view,
the postelection threats, if proven, may aid in interpretation of the preelection
threats. Because timely objections were filed as to the preelection threats, the
two should be considered together. Head Ski Co., 192 NLRB 217, 218 (1971),
relied on by the majority, is distinguishable. In Head, unlike here, there was
no allegation that the postelection threats were made to discourage employees
from testifying at the hearing on the preelection objections. This allegation
serves to tie together the preelection and postelection threats in this case in
a way not present in Head. In addition, even though these allegations imme-
diately involve events that occurred after the election and could not themselves
affect it, the alleged incidents if proved could warrant a denial or revocation
of certification. These serious allegations deserve a full airing at the objections
hearing.
ORDER
The Employer’s request for review is denied.
MEMBER OVIATT, dissenting.
After an election on March 2, 1990, which the
Union won, the Employer filed timely objections.
Among other things, the objections alleged that, prior
to the election, the Union and its agents threatened cer-
tain new employees with job loss if they voted ‘‘no’’
in the election, and that after the election the Union’s
agents engaged in surveillance and harassment of these
employees to prevent them from complaining to man-
agement about election misconduct. The Regional Di-
rector ordered a hearing for the purpose of taking testi-
mony on the objections.
On March 30, 1990, after expiration of the period
for filing objections to the election, the Employer filed
‘‘Supplemental Objections,’’ alleging, among other
things, that some of the same employees who had been
threatened by union agents before the election contin-
ued to receive threats from the Union after the elec-
tion, this time with the purpose of intimidating the em-
ployees into not testifying at the hearing on objec-
tions.1 The Employer also stated that it did not become
aware of these postelection threats until after the time
for filing objections to the election had expired. The
Regional Director rejected the objections as untimely
under Section 102.69(a) of the Board’s Rules and Reg-
ulations, and the Employer requested review.
The Regional Director did not challenge the Em-
ployer’s assertion that it did not learn of the alleged
postelection threats that were the basis of the ‘‘Supple-
mental Objections’’ until after the period under Section
102.69(a) for filing objections to preelection conduct
had expired. Indeed, the ongoing nature of the alleged
postelection threats suggests that at least some of the
threats may not have occurred until after the time for
filing objections under Section 102.69(a) had passed.
Thus, we must assume that the Employer filed its
‘‘Supplemental Objections’’ at the earliest possible
time.2
While there is nothing in the Board’s Rules that spe-
cifically authorizes the filing of objections to post-
election union conduct, neither is there anything in the
Rules that prohibits it. (The Rule relied on by the Re-
gional Director obviously relates only to the timeliness
of objections to preelection conduct.) The alleged post-
election conduct, if proven, might bear on the weight
to be given to the testimony of the Employer’s wit-
nesses at the hearing on objections. It also might war-
rant the Board’s withholding the Petitioner’s certifi-
cation, even if the objections to the preelection conduct
are overruled. In these circumstances, I see no reason
to foreclose full consideration of the ‘‘Supplemental
Objections’’ at the hearing. Indeed, even the Regional
Director acknowledged that the question of post-
election threats could arise on cross-examination of the
witnesses at the hearing.3 This being so, the Regional
Director’s application of the Board’s Rules to dismiss
the Employer’s objections, and thus to preclude thor-
ough consideration of the issue at the hearing and by
the Board, constitutes a much too constrained reading
of the Board’s Rules. Compare White Plains Lincoln
Mercury, 288 NLRB 1133 (1988).4 Accordingly, I
would grant review of the Regional Director’s rejection
of the Employer’s supplemental objections and direct
that the supplemental objections be heard at the same
time as the Employer’s objections.