Movsovitz & Son, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1971

194 N.L.R.B. 444 (N.L.R.B. 1971)

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Movsovitz & Son, Inc . and '..:era R Confectionary
Workers International Union, AFL-CIO, Local
110, Petitioner. Case 10-RC--8446
December 6, 1971
DECISION ON REVIEW
BY CHAIRMAN' MILLER AND MEMBERS
FANNING AND JENKINS
two matters which arose at the hearing. The first
involved an alleged statement by an International
representative of the Petitioner which the Employer
claims is a promise of benefit. The second is an
alleged threat by certain employees to other employ-
ees of bombing, burning, or gassing them if they did
not support the Petitioner. While neither of these
items was alleged in the stated objections, evidence in
regard thereto was adduced at the hearing and is
therefore properly before the Board for consideration.
On October 27, 1970, the Regional Director for
Region 10 issued a Decision and Direction of Election
in the above matter. On November 25, 1970, an
election by secret ballot was conducted among the
employees in the unit found appropriate for the
purposes of collective bargaining. The tally of ballots
indicates that 60 votes were cast for, and 50 votes
against, the Petitioner. There were 3 challenged
ballots. Challenges are not sufficient to affect the
results of the election. On December 1, 1970, the
Employer filed timely objections which were duly
served on the Petitioner. On March 18, 1971, the
Regional Director issued a Supplemental Decision
and Order Directing Hearing and Notice of Hearing
on the objections. The hearing was held on April 16,
1971, before Hearing Officer Howard Trimble. On
July 27, 1971, the Hearing Officer issued his report,
finding the objections to be without merit and
recommended certification of the Petitioner. On
August 9, 1971, the Employer filed exceptions to the
report. On August 18, 1971, the Regional Director
issued a Second Supplemental Decision and Certifica-
tion of Representative in which he affirmed the
Hearing Officer's findings and recommendations. On
August 30, 1971, the Employer filed a Request for
Review of the second supplemental decision and on
September 13, 1971, the Board granted review of the
second supplemental decision and stayed the certifi-
cation pending review.
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 no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the entire record in this
case, including the Employer's Request for Review,
and hereby makes the following findings.
The Request for Review raises no issues in regard to
the dismissal of the objections filed. The only matter
raised is the failure of the Hearing Officer and the
Regional Director to make any findings in regard to
1 The Regional Director adopted the Hearing Officer's finding that no
threats were made during this meeting. The Request for Review is not
directed toward this finding
1. The alleged promise of benefit
The Employer's stated objections involved a meet-
ing held by the Petitioner in which threats were
allegedly made by the Petitioner's International
representative and racial issues were injected into the
campaign. Seventeen different witnesses testified as to
what occurred at this and other meetings.'
A witness called by the Employer was asked on
cross-examination to give her recollection of the
International representative's remarks at this meeting
and her recollection of other meetings. She stated that
at a previous meeting held about November 7, 1970,
and within the critical period, the International
representative stated that he had run several cam-
paigns in the area including one at a refinery near the
Employer's plant and that he had purchased beer and
whiskey for the refinery employees but they had voted
against him. According to the witness, the representa-
tive added that he would buy beer and whiskey for the
Movsovitz employees, but he would wait until after
the Union won the election. The witness was asked if
any beer and whiskey had been supplied after the
election, and she stated she was not aware if it had
been. No other witness corroborated the testimony
regarding this matter although all were asked about
their recollection of what the International represent-
ative stated.2
The Hearing Officer did not credit this witness in
her recollection of other events at this meeting.
It thus appears that the only evidence of the alleged
promise to purchase beer and whiskey is the uncorro-
borated testimony of one witness, who was discredit-
ed in other aspects of her testimony. In such
circumstances we question whether such a promise
was in fact made.
However, assuming arguendo such a promise was
made, it would not be the basis for setting aside an
election. The Board has long since held that the
supplying of meals or alcoholic beverages at a party is
not necessarily coercive or destructive of an atmos-
phere in which a free choice can be made.3 The
2 The Hearing Officer excluded all witnesses during the hearing.
3 Lloyd A. Fry Roofing Co, 123 NLRB 86; Zeller Corp., 115 NLRB 762,
Olunite Corp, 1 l 1 NLRB 888.
194 NLRB No. 68
MOVSOVITZ & SON„ INC. 445
alleged remarks of the International representative,
reasonably interpreted, appear to be no more than a
promise to engage in this tactic. While the fact that
such promise was conditioned on a union victory in
the election is troublesome, the mere possibility of
obtaining this type of minimal gratuity is not such an
emolument as can reasonably be expected to influ-
ence the employees' free choice in the election.4
2. The alleged bomb threat
Our examination of the record indicates that only
one employee, Baker, testified to any "threats"
involving "bombing," and he conceded that these
remarks were made in the midst of jocular bantering,
or "teasing" as he described it. On cross-examination
by the Employer's counsel,5 he was able only to name
one former employee, "Paul," as having made any
such potentially offensive remarks, and, further, he
was unable to recall the date or place of this remark or
identify the individual to whom it was addressed.°
In the Employer's objections bomb threats were
alleged to have been made by the International
representative at a meeting.? Nearly all witnesses were
asked general questions as to bomb threats, but no
other employees mentioned the incidents described
by Baker.
From the above it appears that the record as to
threats is scanty indeed and further establishes that if
they were made at all, which is doubtful, they were
made in a jocular vein. On this record we do not find a
basis on which to set the election aside.
As neither of these matters raised in the Request for
Review warrants a determination to set the election
aside, the Regional Director's Second Supplemental
Decision and Certification of Representative is
hereby affirmed.
4 Jacqueline Cochran Inc., 177 NLRB No. 39.
5 Although he was invited to cross-examine further by the Heanng
Officer, the Employer's counsel declined to do so.
6 All the foregoing remarks were characterized by the witness as joking
and being mere snatches of conversation which had been overheard in
passing.
7 The Regional Director adopted the Hearing Officer's finding that no
such threat was made by the International representative . The Request for
Review does not address itself to this finding.