SWECO, Inc.

National Labor Relations Board - Board Decisions

Jul 18, 1975

219 N.L.R.B. 296 (N.L.R.B. 1975)

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SWECO, Inc. and International Union , Allied Indus-
trial Workers of America, AFL-CIO, Petitioner.
Case 9-RC-10766
July 18, 1975
DECISION ON REVIEW AND
CERTIFICATION OF RESULTS OF ELECTION
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 9 on Oc-
tober 30, 1974, an election by secret ballot was con-
ducted on November 22, 1974, under his direction
and supervision , among the employees in the unit
found appropriate. Upon conclusion of the balloting,
the parties were furnished with a tally of ballots
which showed that, of approximately 43 eligible vot-
ers, 50 cast ballots, of which 15 were for, and 27
against, the Petitioner, and 8 were challenged. The
challenged ballots were insufficient in number to af-
fect the results of the election. Thereafter, the Peti-
tioner filed timely objections to conduct affecting 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 February 19, 1975, issued his Supplemental
Decision, Order and Direction of Second Election in
which he sustained Petitioner's objection,' set aside
the election, and directed a second election. Thereaf-
ter, pursuant to Section 102.67 of the Board's Rules
and Regulations, the Employer filed a timely request
for review of the Regional Director's Supplemental
Decision , contending , inter alia, that in sustaining the
objection the Regional Director departed from
Board precedent.
On March 20, 1975, the Board, by telegraphic or-
der, granted the request for review and stayed the
second election.
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 au-
thOity in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
The objection sustained by the Regional Director
involved certain statements by the Employer in a let-
ter and a speech concerning an unfair labor practice
charge allegedly filed by Petitioner against the Em-
1 Petitioner had filed four numbered objections but later requested with-
drawal of Objections 2, 3, and 4 and a portion of Objection I. The Regional
Director approved the withdrawal request.
ployer alleging discrimination with respect to the lay-
off of employee McKnight.
In a campaign flyer, the Petitioner appealed for
employee support on the ground that it would pro-
tect them against arbitrary and improper action of
the Employer, specifically referring to the fact that it
had filed an unfair labor practice charge grounded
on the Employer's improper "discharge" of Mc-
Knight.
By letter dated November 16, 1974, the Employer
responded that the Petitioner was playing "dirty
pool" in claiming that McKnight was discharged
without mentioning that two other named employees
were laid off at the same time and for the same rea-
son-lack of work. The Employer charged that the
reason the Petitioner named only McKnight was be-
cause "Unions play favorites. They discriminate.
They don't play fair. They play DIRTY POOL." The let-
ter further stated that the Employer refused
Petitioner 's request to reinstate McKnight with back-
pay because it did not then need his services and
therefore it would not be fair to the other employees
who were laid off at the same time and for the same
reason ; that, after Employer agreed to offer Mc-
Knight employment in his former or an equivalent
position when work became available, the Petitioner
"had the gall to ask [Employer] to take McKnight
back at a better job than he had when he was laid
off"; and that the Employer rejected this request as it
would "never `make work' or `promote' anybody just
so some union can help out one of its favorites."
In a speech to employees on November 21, the
Employer discussed a number of reasons why em-
ployees should vote against the Petitioner, and re-
verted to the earlier charge of union favoritism in the
following statement:
In my letter the other day, I showed you how
unions play favorites. They bragged about how
they were going to get one of their buddies back
here with lots of backpay, but they didn't lift a
finger to help half a dozen other boys who were
laid off at the same time as the buddy. That's the
rankest kind of discrimination. Then, the NLRB
people came to me, after talking with somebody,
and wanted me to bring this man back with a
better job title than he had when he was laid off.
I could not agree to do that in fairness to the rest
of you and to our customers. If the union forces
its way in here tomorrow, and makes you belong
to it with a union shop clause , there may be little
that I can do to protect you against this type of
favoritism and unfair discrimination.
We find no warrant for the Regional Director's
conclusion that the Employer's speech, considered in
219 NLRB No. 71
SWECO, INC.
light of the earlier letter, conveyed the impression
that the Board "was not completely neutral in its
processing" of the representation case "and implied
that the Board favored the Petitioner and character-
ized the settlement negotiations [with respect to Mc-
Knight] as an effort by the Board to encourage the
Employer to play favorites among its employees." In
our opinion, the thrust of the Employer's propaganda
was that the Petitioner, not the Board, was playing
"favorites" in filing a charge only on behalf of Mc-
Knight and in seeking only his reemployment. Such
an allegation constitutes fair comment which the em-
ployees could evaluate. Indeed the Employer's only
reference to the Board was the statement that Board
personnel, "after talking with somebody," wanted
the Employer to reemploy McKnight at a better job.
Viewed in light of the Employer's consistent cam-
paign theme and the qualifying phrase-after talking
to somebody-we are satisfied that it would reason-
297
ably appear to the employees that the reference to
the Board agent meant that he was merely relaying
the Petitioner's position. Accordingly, we find that
the Employer's remark did not impair the free choice
of the voters and therefore the Petitioner's objection
is hereby overruled.
As the tally of ballots shows that the Petitioner has
not received a majority of the valid ballots cast, we
shall certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes have not been cast for International Union, Al-
lied Industrial Workers of America, AFL-CIO, and
that said labor organization is not the exclusive rep-
resentative of all the employees in the unit herein
involved within the meaning of Section 9(a) of the
National Labor Relations Act, as amended.