Serv-Air, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1970

183 N.L.R.B. 263 (N.L.R.B. 1970)

SERV-AIR, INC. 263
Serv-Air, Inc . and Lodge 898, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO. Case 16-RC-5168
June 10, 1970
DECISION AND DIRECTION OF SECOND
ELECTION
By MEMBERS MCCULLOCH, BROWN , AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed on April 1, 1969, an
election by secret ballot was conducted on April
22, 1969, under the direction and supervision of
the Regional Director for Region 16 among the em-
ployees in the appropriate unit. At the conclusion
of the election, the parties were furnished with a
tally of ballots which showed that of approximately
916 eligible voters, 920 cast ballots, of which 371
were for, and 545 were against the Petitioner, 3
ballots were challenged, and 1 was void. Thereafter,
the Petitioner filed timely objections to conduct af-
fecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Regional Director conducted an investigation
and, on July 25, 1969, issued and served on the
parties his Report on Objections in which he
recommended to the Board that the Employer's
motion to dismiss the Petitioner's objections be
overruled; that Petitioner's Objections 5, 7, 10, 11,
and 12 be overruled; and that Objections 4 and 9
sustained, the election set aside, and a new election
be directed. In view of his recommendation that
Objections 4 and 9 be sustained, he reserved ruling
on Objections 1, 2, 3, 6, and 8. He further recom-
mended, in the alternative, that if his recommenda-
tions with respect to Objections 4 and 9 were not
adopted, a hearing be held for the purpose of
resolving credibility and making findings of fact on
the basis of record testimony in regard to Objec-
tions 1, 2, 3, 6, and 8. Thereafter, on August 4,
1969, the Employer filed timely exceptions to the
Regional Director's report, submitting that any
second election or recommendation thereof be de-
nied , or at least deferred, until after a hearing on
certain objections.
On August 26, 1969, the Board directed that a
hearing be held to resolve the issues raised with
respect to Petitioner's Objections 1, 2, 3, 4, 6, 8,
and 9. Thereafter, pursuant to notice of hearing on
objections, a hearing was held on various days
between September 23 and 26, 1969, in Enid,
Oklahoma, before Hearing Officer Charles H.
Steere. On December 5, 1969, the Hearing Officer
issued and served on the parties his Report on Ob-
jections in which he recommended that Petitioner's
Objections 1, 2, 3, 4, 6, 8, and 9 be sustained, the
election set aside and that the case be remanded to
the Regional Director for the purpose of permitting
him to conduct a second election. The rulings of
the Hearing Officer made at the hearing are free
from prejudicial error and are hereby affirmed.
Thereafter, the Employer filed timely exceptions to
the Hearing Officer's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case 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.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees within the
meaning of Sections 9(c)(1) and 2(6) and (7) of
the Act.
4. The following employees, as stipulated by the
parties, constitute a unit appropriate for purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All production and maintenance employees
employed by Serv-Air, Inc., at Vance Air
Force Base, Enid, Oklahoma, excluding all
other employees, office clerical employees,
professional employees, fire department em-
ployees, guards, watchmen and supervisors as
defined in the Act.
5. The Board has duly considered the Hearing
Officer's Report on Objections and the entire
record in the case, including the exceptions, and for
the reasons set out below, adopts the Hearing Of-
ficer's recommendation that the election be set
aside and a second election be directed.
The record shows that Objections 1, 2, 3, 8, and
9 in principal part involve the Petitioner's conten-
tion that the Employer unduly interfered with the
election by informing employees during the
preelection period that in the event the Petitioner
were selected as collective-bargaining representa-
tive and a strike were called, they would lose their
jobs. Uncontradicted testimony indicates that cer-
tain supervisors declared to unit employees that in
the event of a strike the Air Force would certainly
take over the functions now performed by Serv-Air
as it had done in the past when the Union called a
strike in another bargaining unit in 1965. More im-
portantly, the Employer, in two letters addressed to
183 NLRB No. 32
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees, during the preelection campaign,
clearly conveyed the impression that selection of
the Union would be meaningless since the Em-
ployer intended to bargain from "scratch" in
negotiating existing benefits, that the Employer
would violate the law, as it had done in the past,
rather than sign a contract, and that in order to
secure any benefits the Union would have to strike,
in which case the Air Force would surely take over
and thus eliminate all jobs in the bargaining unit. In
our view, the minatory character of the letters and
the context in which they appeared constitute an
improper interference with the election and justifies
our setting the election aside.
Petitioner's Objection 4 alleges that during the
election, supervisors of the Employer were present
in the voting area where they stared at voters
getting in line and signaled to them to vote "No." It
appears from the record that the voting area was
not clearly demarcated or understood, that super-
visors were present in the general area surrounding
the polls by agreement and in pursuance of their
normal activities, and that the evidence relating to
their expressions and gestures was ambiguous.
Under these circumstances we shall overrule this
objection. In view of our determination herein, we
find it unnecessary to pass upon Objection 6, which
involves a no-distribution rule.
ORDER
It is hereby ordered that the election previously
conducted herein on April 22, 1969, be, and it
hereby is, set aside.
[Direction of Second Election' omitted from
publication. ]
Member McCulloch , dissenting in part:
I don 't agree with the "minatory " characteriza-
tion of the statements relied on by my colleagues in
setting aside the election . Hence I would overrule
the Petitioner 's objections based on this conduct.
One of the Employer's statements found objec-
tionable by the majority was that in the event of a
strike the Air Force would take over the Em-
ployer's operations as it had done in similar circum-
stances in 1965. This seems to me a reasonable pre-
diction of a kind which is privileged by Section
8(c). ". . . [A]n employer is free to tell employees
what he reasonably believes will be the likely
economic consequences of unionization that are
outside his control , as distinguished from threats of
economic reprisal to be taken solely on his own
volition ." N.L.R.B . v. River Togs , Inc., 382 F.2d
198, 202 (C.A. 2), quoted with approval in
N.L.R.B . v. Gissel Packing Co ., 395 U. S. 575, 619.
Similarly, I evaluate as legitimate argument the
statements contained in the Employer's preelection
letters to employees that my colleagues regard as
prohibited threats . The Employer stated reasonably
and accurately that in the event the Union won the
election , the employees would not necessarily get
"more"; that under the law there is equal opportu-
nity in bargaining to lose benefits as well as gain
benefits . The Employer did not state that it would
violate the Act rather than sign a contract , and that
in order to secure any benefits the Union would
have to strike . Nor fairly read in their entirety did
the letters convey this impression in my opinion.
The Employer did state , " if it is economically not
feasible for the Company to grant their [ Union] de-
mands, the Union may call for a strike . IS THAT
WHAT YOU WANT? IS THIS FULL EMPLOY-
MENT?" As I stated above, this is fair argument.
i In order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Un-
deni ear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co., 394 U.S
759 Accordingly, it is hereby directed that an election eligibility list, con-
taining the names and addresses of all the eligible voters, must be filed by
the Employer with the Regional Director for Region 16 within 7 days after
the date of issuance of the Notice of Second Election by the Regional
Director The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed