St Peter More-4

National Labor Relations Board - Board Decisions

Mar 17, 1999

327 N.L.R.B. 878 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 878
Erickson’s Diversified Corporation d/b/a/ St. Peter
More-4 and United Food and Commercial
Workers International Union, Petitioner. Case
18–RC–16330
March 17, 1999
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS LEIBMAN, HURTGEN, AND
BRAME
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on August 21, 1998, and the Regional Director’s
report recommending disposition of them. The election
was conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 51 for and 17 against
the Petitioner with 12 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the Regional Director’s report
in light of the exceptions and brief, has adopted the Re-
gional Director’s findings and recommendations,1 and
finds that a certification of representative should be is-
sued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for United Food and Commercial Work-
ers International Union, and that it is the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:

1 For the reasons fully set forth in Millsboro Nursing & Rehabilita-
tion Center, 327 NLRB No. 153 (1999), and contrary to our dissenting
colleague, we adhere to longstanding Board and court precedent involv-
ing alleged objectionable conduct based on the prounion activities of
statutory supervisors. In brief, prounion activities of statutory supervi-
sors may constitute objectionable conduct when: (1) the employer takes
no stand contrary to the supervisors’ prounion conduct, thus leading
employees to believe that the employer favors the union; or (2) the
supervisors’ prounion conduct coerces employees into supporting the
union out of fear of retaliation by, or rewards from, the supervisor.
Neither of these conditions is present here. Accordingly, we agree with
the Regional Director that, even assuming arguendo, the Employer’s
department heads are supervisors, there is no merit to the Employer’s
objections.

All full-time and regular part-time employees
employed by the Employer at its facility located
at 612 South Minnesota Ave., St. Peter, Minne-
sota; excluding the store director, pharmacists,
office clerical employees, guards and supervi-
sors, as defined in the Act, as amended.

MEMBER HURTGEN, dissenting.
If the individuals involved here are supervisors, I
would find the conduct objectionable for the reasons set
forth in my dissent in Millsboro Nursing & Rehabilita-
tion Center, 327 NLRB No. 153 (1999).
As more fully set forth in Millsboro, I do not wholly
agree with current Board law as set forth in Sutter Rose-
ville Medical Center, 324 NLRB 218 (1997). Although I
agree with the first part of the test in Sutter, I disagree as
to the second part of the test. In my view, supervisory
solicitation of authorization cards is inherently coercive
and objectionable.
In the instant case, the Employer opposed unionization
and made its opinion known. Therefore, under the first
part of the test in Sutter, the solicitation of cards could
not have led employees to reasonably believe that the
supervisory solicitation reflected a prounion view on the
part of the Employer. However, in a number of in-
stances, department head managers distributed authoriza-
tion cards and directed employees to sign the cards or at
least strongly suggested that they should do so. Clearly,
by such conduct, employees were put on the spot to de-
clare themselves on the issue of unionization. I believe
that this conduct is objectionable.
I would remand this proceeding for a determination of
the impact that the conduct had on the election atmos-
phere. If the conduct affected the election, I would set
the election aside.

327 NLRB No. 152