Parks Food Service

National Labor Relations Board - Board Decisions

May 4, 1978

235 N.L.R.B. 1410 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ira Parks, Jr., d/b/a Parks Food Service and Robert
C. Kirk, Petitioner and National Maritime Union
of America, AFL-CIO-ITPE Division. Case 23-
UD-I
May 4, 1978
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 23 on April 29, 1977, an election by secret
ballot was conducted on May 17, 1977, under his
direction and supervision among the employees in
the appropriate unit. At the conclusion of the
election, the parties were furnished with a tally of
ballots which showed that there were approximately
51 eligible voters and 47 cast ballots, of which 47
were in favor of, and none against, withdrawing the
authority of the bargaining representative to require,
under its agreement with the Employer, that mem-
bership in the Union be a condition of employment.
Thereafter, the Union filed a timely objection to
conduct affecting the results of the election.
Pursuant to Section 102.69 of the National Labor
Relations Board's Rules and Regulations, Series 8, as
amended, the Regional Director conducted an inves-
tigation and, on June 13, 1977, issued and duly
served on the parties his report in which he recom-
mended that the Union's objection be overruled.
Thereafter, the Union filed timely exceptions to the
Regional Director's 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.
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 labor organization involved claims to
represent certain employees of the Employer.
3. The Board has considered the entire record in
this proceeding, including the Union's objection, the
Regional Director's report, and the Union's excep-
tions,' and hereby adopts the Regional Director's
' In its exceptions, the Union alleged for the first time that the Employer
interfered with the election by unilaterally halting contnbutions to a health
and welfare fund. The Board has long held that it will not consider, as
objectionable, conduct which neither was alleged in a timely filed objection,
nor was discovered by a Regional Director during the course of his
investigation of such an objection. See Hecla Mining Company, 218 NLRB
860 (f175). Accordingly, we reject the Union's contention as untimely
raised.
235 NLRB No. 191
findings and recommendations only to the extent
consistent herewith.
Briefly, the facts are as follows. On February 3,
1977, the instant deauthorization election petition
was filed. Thereafter, the Employer posted and
distributed to its employees a notice which stated:
February 17, 1977
TO ALL EMPLOYEES OF PARKS FOOD SERVICE KELLY
AFB, TX.
It has come to our attention that union repre-
sentatives have been threatening our employees
that unless they join the Union, they will be
discharged from employment with Parks Food
Service.
At the present time, there is pending before the
National Labor Relations Board a petition filed
by certain of our employees requesting an elec-
tion to revoke the Union Security Clause con-
tained in the N.M.U. contract. In light of that
petition, we regard as coercive and unlawful any
attempt by the union to force you to join the
union.
In any event, until the Labor Board has
resolved the issues now pending before it, we do
not intend to discharge or otherwise discriminate
against any of our employees because of their
refusal to join the union.
/s/ Ira Parks, Jr.
Ira Parks Jr.
Parks Food Service
Kelly AFB, Tx.
This notice was the basis of a complaint issued on
April 4, 1977, in Case 23-CA-6379, charging the
Employer with violations of Section 8(a)(5) and (1) of
the Act. The apparent theory of the complaint is that
the notice constituted an unlawful repudiation of the
union-security clause of the collective-bargaining
agreement.2
Prior to the election, the Regional Director request-
ed authority to process the instant petition notwith-
standing the pending unfair labor practice proceed-
ing. By telegram dated April 5, 1977, the Board, with
Chairman Fanning dissenting, granted the Regional
Director's request. As stated above, the election was
held on May 17, 1977.
2 The Board has been administratively advised that on November 17,
1977, the parties entered into an informal settlement agreement in this
matter and that, after an appropriate notice had been posted from
November 22, 1977, to January 22, 1978, the Regional Director closed the
case on compliance on February 17, 1978.
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PARKS FOOD SERVICE
In its objection, the Union alleged that the Em-
ployer's notice prevented the holding of a fair
election. The Regional Director concluded that the
issue of the effect of the notice on employee free
choice was resolved by the Board when it authorized
the Regional Director to conduct the election.
Accordingly, he recommended that the objection be
overruled.
The Board has carefully reconsidered this issue,
particularly in view of the contentions advanced in
the Union's exceptions, and now finds that the
Regional Director's request for authority to proceed
with the election was improvidently granted. In our
judgment, the employees--in light of the Employer's
having repudiated and eliminated the union-security
clause prior to the election-could not make a free
and untrammeled choice as to whether to retain the
clause.
Under these circumstances, we cannot find that the
employees were able to exercise a free choice in the
election. Accordingly, we hereby sustain the Union's
objection and set aside the election, and we shall
direct that a second election be held at such time as
the Regional Director deems appropriate.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
1411