TVA Terminals

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 284 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TVA Terminals, Inc. and International Longshore-
men's and Warehousemen's Union, Petitioner.
Cases 21-CA-22068 and 21-RC-16932
30 April 1984
DECISION, ORDER, AND DIRECTION
OF FOURTH ELECTION
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 27 October 1983 Administrative Law Judge
William L. Schmidt issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions2 and to adopt the recommended Order
as modified.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, TVA Terminals, Inc., Wilmington, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph l(b).
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 54 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
' In concluding that the Respondent's manager, Cowan, unlawfully in-
terrogated employee Lazo concerning his voting preference in the forth-
coming election, the judge remarked, "Entirely aside from the fact that it
was not an isolated instance of coercive conduct, I am not satisfied that
such an employer's inquiry as to how an employee intends to vote in a
secret ballot representation election should ever be excused on that
ground." We adopt the judge's conclusion that the Respondent's interro-
gation violated Sec. 8(aXl) in the circumstances of this case, but find it
unnecessary to pass upon the quoted remark.
0 Par. I(b) of the recommended Order requires the Respondent to
cease and desist from threatening employees, inter alia, with conduct evi-
dencing an unwillingness to reach a collective-bargaining agreement if
the employees select the Union to represent them. We note that the com-
plaint contains no allegation that the Respondent engaged in this con-
duct, and that the parties did not directly litigate this issue. Nevertheless,
the judge found that Supervisor Cowan told the unit employees at a
meeting on 3 March that if they voted for the Union he would negotiate
strictly with the Union and not the employees. Because this statement is
susceptible to an interpretation that the Respondent would negotiate only
with the Union if it were voted in-a position consistent with the Re-
spondent's bargaining obligations-we find that there is insufficient basis
for concluding that Cowan's statement was unlawful. Accordingly, we
shall delete from par. I(b) of the recommended Order the requirement
that the Respondent cease and desist from threatening employees with
this conduct.
"(b) Threatening employees with adverse eco-
nomic consequences if the employees select Inter-
national Longshoremen's and Warehousemen's
Union to represent them."
2. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the election held 4
March 1983 be set aside.
[Direction of Fourth Election omitted from pub-
lication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively interrogate employees
concerning their activities or sympathies for Inter-
national Longshoremen's and Warehousemen's
Union.
WE WILL NOT threaten you with adverse eco-
nomic consequences if you select International
Longshoremen's and Warehousemen's Union to
represent you.
WE WILL NOT promise employees additional
work or a written contract as a substitute for a col-
lective-bargaining agreement if you reject Interna-
tional Longshoremen's and Warehousemen's Union
as your representative in a representation election
conducted under the National Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
TVA TERMINALS, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge.
This matter was heard on June 21, 1983, at Los Angeles,
270 NLRB No. 49
284
TVA TERMINALS
California.' The charge in Case 21-CA-22068 was filed
against TVA Terminals, Inc. (Respondent) by the Inter-
national Longshoremen's and Warehousemen's Union
(Union) on March 16. A complaint based on that charge
was issued on behalf of the General Counsel of the Na-
tional Labor Relations Board (NLRB or Board) by the
Regional Director for Region 21 of the Board on April
28 alleging that the Respondent had violated Section
8(aX1) of the National Labor Relations Act (the Act).
The Respondent filed a timely answer dated May 2. On
May 26, the Acting Regional Director for Region 21
issued a supplemental report on objections (supplemental
report) in Case 21-RC-16932, involving the same parties,
in which it was concluded that, as the factual issues
raised by certain of the Union's election objections were
closely related to the issues raised by the complaint case,
it was appropriate to consolidate the two cases for hear-
ing and decision and an order to that effect issued simul-
taneously.
On the entire record, including my observation of the
witnesses who testified at the hearing, and my careful
consideration of the posthearing briefs filed by the Gen-
eral Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a California corporation, receives,
stores, and ships baled cotton at its Wilmington, Califor-
nia place of business. The Respondent annually pur-
chases and receives goods valued in excess of S50,000 di-
rectly from suppliers located outside California in its
normal business operations. The Respondent has been at
relevant times an employer within the meaning of Sec-
tion 2(2) of the Act, engaged in commerce, or a business
affecting commerce, within the meaning of Section 2(6)
and (7) of the Act. On the basis of the foregoing, I find
that the Respondent meets the Board's applicable nonre-
tail, direct inflow standard and that it would effectuate
the purposes of the Act for the Board to exercise its ju-
risdiction in connection with the labor dispute involved
here.
II. LABOR ORGANIZATION
The Union has been a labor organization within the
meaning of Section 2(5) of the Act at relevant times.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Pleadings
The complaint alleges that the Respondent violated
Section 8(aXl) of the Act by the conduct of its general
manager Wynn A. Cowan Jr. (Cowan). It alleges that
Cowan unlawfully interrogated employees on an un-
known date in February, and again about March 3; that
he threatened employees with the loss of work and busi-
ness and other reprisals about March 2 or 3; that he
promised the employees there would be increased work
and earnings, and that he would negotiate an agreement
' Unless shown otherwise, all dates are 1983.
directly with them if they did not select the Union as
their collective-bargaining representative; and that he
told employees in January or February that they did not
receive wage increases because they gave affidavits in a
prior Board proceeding. The Respondent's answer denies
the alleged unfair labor practices. No affirmative de-
fenses are alleged.
The Acting Regional Director's report in Case 21-
CA-16932 discloses that a third representation election
was conducted in that case on March 4.2 The official
tally of ballots served after the March 4 election reflects
that seven ballots were cast against representation by the
Union, three ballots were cast for representation, and one
ballot was void. On March 14, the Union filed timely ob-
jections to conduct affecting the results of the March 4
election.8 Included in the Union's objections to the third
election were allegations that the Respondent had inter-
rogated employees concerning their union activities and
sympathies, and had threatened employees with the loss
of work. The Acting Regional Director concluded that
these objections were closely related to the complaint al-
legations and ordered the cases consolidated. The evi-
dence offered in connection with the complaint allega-
tions is the only evidence offered to support the objec-
tions.
B. Background Information
As noted, the Respondent's business is the receiving,
storing, and shipping of baled cotton. Approximately 26
shippers use the Respondent's services. Generally speak-
ing, the Respondent's operations are seasonal. The peak
period lasts from October through February or March.
The Respondent's two main facilities are located in
Wilmington, California, and are known as warehouse no.
16 and no. 17. These warehouses are divided into three
compartments of 40,000 square feet of storage space
each. Cowan maintains an office in the front portion of
no. 17. Cowan, who became the Respondent's manager
in April 1982, is a statutory supervisor as is Dennis
Kunkle, the Respondent's warehouse supervisor. Steven
Schwab, one of the key General Counsel witnesses here,
was alleged in a prior unfair labor practice case to have
been a statutory supervisor responsible for several unfair
labor practices, but it appears that his authority as a
working foreman was altered and the parties were able
to stipulate as to his eligibility to vote in the third elec-
tion. The no. 17 office area is also the work location for
two clerical employees and another individual who is
concerned primarily with the Respondent's inventory
' According to the supplemental report, the first election, conducted
on March 11, 1982, pursuant to a Stipulation for Certification Upon Con-
sent Election, resulted in an unfavorable vote for representation and was
set aside pursuant to the parties' stipulation that certain of the Union's
postelection objections had "arguable merit." The tally of ballots for the
second election, conducted on June 3, 1982, was not served until Novem-
ber 10, 1982, and it, likewise, reflected an unfavorable result for the
Union. However, the second election was also set aside pursuant to the
parties' February 17 stipulation that the Union's timely objections had
"arguable merit."
I It was specifically concluded in the supplemental report that there
was a delay in the receipt of the objections which was attributable to the
postal service. No claim was made before me that the objections were
not timely filed.
285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and its location. In addition, the Respondent rents ware-
house space in no. 13, located directly across from no.
16, and warehouse space in a noncontiguous area known
as the Foreign Trade Zone. The Respondent also pro-
vides labor for loading and unloading in an area known
as the Team Track but there is no storage facility in that
area.
At the relevant times, the Respondent employed ap-
proximately 11 unit employees who load and unload the
cotton bales using mechanized lifts. Generally, the cotton
arrives at the Respondent's warehouses by truck or con-
tainer. Although the unit employees could familiarize
themselves with the name of each particular shipper
from the accompanying shipping documents, there is no
indication that they have reason to be concerned with
such information. Instead, they generally concern them-
selves with a letter mark contained on the cotton bales
and the shipping documents. Nevertheless, it is pertinent
that, during the 1982-1983 season, approximately 20 per-
cent of the cotton received for storage at no. 16 and no.
17 came from a single shipper named Calcot.
C. Chronology of Relewnt Events4
As noted above, the third representation election in
Case 21-RC-16932 was scheduled for March 4, follow-
ing the parties' February 17 stipulation to set aside the
second election on the ground that the Union's objec-
tions thereto had "arguable merit." All of the events in-
volved here occurred between the beginning of the year
and the March 4 election.
In a conversation which reportedly occurred in late
January or early February, Schwab expressed dissatisfac-
tion to Cowan because he had not received the same pay
raise recently granted to the other employees. Cowan re-
minded Schwab that he, nevertheless, was earning 50
cents per hour more than the other unit employees.
Schwab responded that he had been promised a $1-per-
hour differential as the working foreman. Schwab also
argued that he had been a "company man," excelling in
his job and that he deserved the same 50-cent-per-hour
raise. Schwab told Cowan that he "did what the compa-
ny wanted in going non-union" and that it was not fair
' There are significant conflicts in the testimony concerning the inci-
dents reported in this subsection. Steven Schwab and Raul Lazo, the
General Counsel's witnesses, appeared sincere and trustworthy while tes-
tifying. By contrast, the testimony of Cowan and Kunkle, the Respond-
ent's witnesses, is laced with occasional conflicts and inconsistencies and
certain significant points were elicited by means of leading and highly
suggestive questions. In addition, the almost neutral tone of Cowan's re-
marks at the March 3 employee meeting--discussed below-as portrayed
by the direct testimony of Cowan and Kunkle does not comport with
other undisputed evidence including Kunkle's own acknowledgment on
cros-examination that Cowan's remarks at the meeting included hostile
assertions that he did not need outsiders telling him how to run his busi-
ness. Furthermore, Cowan's denial-noted below-that he was aware
that Schwab had given an NLRB affidavit is highly improbable in the
total circumstances of this case. Finally, the fact that Lazo, who was still
employed by the Respondent at the time of the hearing, testified contrary
to Cowan, his supervisor, lends some strength to his reliability. For these
reasons, it was concluded that, to the extent there was a conflict in the
evidence, the testimony of Schwab and Lazo represented the more reli-
able version of the events reported here. However, the findings concern-
ing the March 3 meeting is a composite of the undisputed testimony of all
four witnesses and the credited testimony of Schwab and Lazo on disput-
ed points.
for him to be bypassed. Schwab claims that Cowan re-
plied to his appeal by saying that he had "hurt the com-
pany with the prior affidavit that [he] gave to the
NLRB." Cowan's reference, Schwab believes, was to a
June 1982 affidavit prepared in the offices of the Re-
spondent's labor consultant. Schwab said that he also
provided a copy of the affidavit to the Respondent's
counsel in this proceeding.
Cowan claimed that he was unaware that Schwab had
provided an affidavit to the NLRB. He also denied that
Schwab was initially bypassed for the pay increase be-
cause he had given an affidavit to the NLRB. It is undis-
puted that Schwab was granted the pay increase soon
after this conversation when Cowan confirmed that
Schwab had earlier been promised the larger differential.
In February, Schwab went to the office at no. 17 in
connection with his work. Cowan, his wife, and the
sister of Cowan's wife (identified as the two clericals)
were present. Schwab claims that Cowan asked his opin-
ion at this time as to how he thought the representation
election would turn out. Schwab told Cowan that he
thought that the vote would be about 50-50. Cowan then
asked if Schwab knew who was eligible to vote. After
Schwab replied affirmatively, the conversation ended.
Cowan denied that he had any conversation with
Schwab about how the employees would vote. Neither
of the clerical employees testified.
About 3 p.m. on March 2, Cowan approached Raul
Lazo, a unit employee, near a warehouse ramp. No one
else was present. Cowan told Lazo that he was going to
need his vote in the March 4 election and that it would
be to Lazo's advantage if he voted against the Union.
Lazo's only response was "okay" and the conversation
ended. The substance of this conversation is essentially
undisputed as is another similar conversation between
Cowan and Lazo the following day. Neither conversa-
tion is alleged as an unfair labor practice but they are
probative of the fact that Cowan was openly opposing
the Union.
On the morning of March 3, the day before the third
election, Cowan met with nearly all of the unit employ-
ees in his office. Warehouse Supervisor Kunkle was also
present. During the meeting, Cowan told the employees
that he felt that he had treated them all fairly and, for
that reason, he felt they did not need union representa-
tion. Cowan said that if the employees "went union" a
majority of the cotton stored with the Respondent would
not be there and that work would slow down. Cowan
continued telling the employees that he expected addi-
tional cotton for storage from Calcot, one of the new ac-
counts that Cowan had secured, but that Paul Couch, a
Calcot executive Cowan had known for several years,
would not store additional cotton in the Respondent's
warehouses if the employees unionized because it would
be "disadvantageous" to Calcot. Cowan explained that
the Respondent would lose its advantage because its
rates would be too high. Mention was also made of the
fact that some shippers were concerned over the election
results because they feared that they might not be able to
gain access to their stored cotton in the event of a strike
as had occurred, Cowan claimed, at some other ware-
286
TVA TERMINALS
houses. In addition, Cowan said that the Respondent
could not expect to get Commodity Credit Corporation
cotton for storage if the employees unionized. Cowan
said that if the employees voted against the Union they
could expect to receive enough cotton from Calcot to
keep them busy during the off season. Cowan invited
questions and several followed. One employee, Mark
Van Der Kay, asked if Cowan would negotiate an agree-
ment directly with the employees. Cowan replied that it
would be possible to "work up a contract with the em-
ployees" if they "were to go non-union," but that "his
hands were tied" during the election proceedings.
Kunkle said that Cowan "left [that question] kind of
open." Nevertheless, Cowan told the group that if they
voted for representation he would negotiate strictly with
the Union and not the employees.
After the meeting, Cowan approached Lazo in one of
the warehouses. No one else was present. At this time,
Cowan remarked to Lazo that he had heard about a con-
versation between Lazo and another employee in which
Lazo had expressed concern about a wage decrease at a
nearby firm in the course of a labor dispute. Cowan told
Lazo not to worry. Cowan went on-according to
Lazo-to point out that the cotton bales in the particular
area of the warehouse "comes from Calcot." Cowan
then added that Calcot's cotton would not be there if the
employees "went union." Cowan told Lazo that the Re-
spondent was awarded Calcot's account after a labor dis-
pute at the warehouse where Calcot previously stored its
cotton had interfered with Calcot's access to its cotton.
Although Cowan generally denied that he ever stated to
any employees that Calcot would not store its cotton in
the Respondent's warehouse if the employees opted for
the Union, Cowan did not specifically testify concerning
this conversation.
Approximately 2 hours later, Cowan stopped Lazo as
he was driving up a warehouse ramp. On this occasion
Cowan asked Lazo how he intended to vote. Lazo said
that he did not know. Cowan told Lazo that it would be
"advantageous" to him to vote against the Union.
Cowan also told Lazo that if the Union won most of the
cotton would not be there and the work would slow
down. Cowan did not specifically testify concerning this
conversation but he denied generally asking any employ-
ee other than Schwab about their voting plans."
D. Additional Findings and Conclusions
In his brief, the General Counsel argues that Cowan's
remark about Schwab's affidavit is coercive and that it
should be remedied because it would tend to discourage
employees from giving testimony under the Act. The
General Counsel also asserts that Cowan's inquiry to
Schwab about the possible election results and his in-
quiry to Lazo about his voting intentions are both coer-
cive even in the absence of any accompanying threats or
promises as Cowan gave no assurance against any repris-
al. The General Counsel feels that Cowan's contempora-
neous remark to Lazo that the Respondent would lose
s Interestingly, Schwab mid that neither Cowan nor any other supervi-
sor aked him how he planned to vote and he never overheard any super-
visor ask any other employee about voting.
the Calcot cotton if the employees voted for the Union-
a separate unlawful remark in the General Counsel's
view-underscores the coercive nature of Cowan's in-
quiry concerning Lazo's voting intentions. The General
Counsel also argues that Cowan's remarks at the March
3 meeting were unlawful because they were designed to
convey the notion that employees would suffer economi-
cally if they voted for the Union, namely, the loss of the
existing Calcot work, but that they would benefit eco-
nomically from added Calcot work if they rejected the
Union. Finally, the General Counsel believes that Cowan
effectively promised to deal directly with the employees
in order to induce them to forego representation.
Apart from its credibility arguments seeking the con-
clusion that the events detailed above did not occur as
reported by Schwab and Lazo, the Respondent advances
other legal and factual arguments. With respect to the
issue concerning Schwab's affidavit, the Respondent con-
tends that "there is absolutely no evidence that Cowan
told Schwab that he did not receive a wage increase be-
cause of his affidavit." The Respondent also asserts that
the evidence is insufficient to warrant the conclusion that
the Respondent "promised [to] negotiate a collective bar-
gaining agreement directly with [the employees] in
return for their rejection of the Union." Both of these
contentions are grounded upon a careful comparison of
the complaint language with some of the testimony in
the case. The Respondent also asserts that even if it is
assumed that the election result and voting intention in-
quiries occurred as reported by Schwab and Lazo, re-
spectively, the questions were not unlawful because they
were not coercive. In this regard, the Respondent argues
that Schwab was merely asked for his "opinion" and the
Lazo voting interrogation was an "isolated instance"
which lacked any coercive quality. As to Cowan's con-
duct at the March 3 meeting, the Respondent argues that
his remarks did not threaten any loss of work if the em-
ployees selected the Union or promise more work if they
rejected the Union. Instead, the Respondent contends
that the uncontested evidence shows that Calcot's work
for the season was completed and that, in any event, Cal-
cot's work simply was not of sufficient magnitude to
cause employee concern one way or the other.
I find, in agreement with the Respondent, that the evi-
dence does not show that Schwab or other employees
did not "receive wage increases that they otherwise
would have received because they had given affidavits to
the Board . . . ." At most, the credited evidence of
Schwab shows only that Cowan verbalized his judgment
that Schwab's affidavit had hurt the Respondent's posi-
tion in the prior unfair labor practice proceeding in
which Schwab was alleged to be an agent of the Re-
spondent. Even assuming that there is no impediment to
finding an unfair labor practice because of the wide gap
between the conduct alleged and the conduct proven, I
remain unconvinced that the disputed remark, viewed
objectively, would have the tendency to interfere with,
restrain, or coerce employees. Although it may be true
that a similar remark, properly pled, could, in another
setting, warrant a different conclusion, the total circum-
stances here fail to demonstrate that Cowan's statement
287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was designed to frighten Schwab. Rather, the evidence
shows that the disputed remark was the product of
Schwab's argument that he was deserving of a pay in-
crease, in part, because of his loyal antiunion conduct
and attitudes. To the extent that Cowan's remark about
the affidavit might have had any coercive effect, I find
that it was quickly overcome when Cowan agreed to
verify the pay differential commitment made to Schwab,
and the further fact that Schwab actually received the
increase shortly thereafter. Accordingly, it is concluded
that Cowan did not violate Section 8(aXl) in an manner
by his remark to Schwab about his affidavit.
Similarly, Cowan's question to Schwab about the elec-
tion results is not coercive. Even assuming that Schwab
may become sympathetic toward the Union, it is difficult
to perceive how the election result question conveyed
any displeasure on Cowan's part with Schwab's activities
or how it discouraged him or any other employee from
engaging in union activity. Compare PPG Industries, 251
NLRB 1146 (1980). Accordingly, it is concluded that
Cowan's election result inquiry to Schwab did not vio-
late the Act.
The General Counsel has met the required burden of
proving the remaining allegations. Cowan's claim at the
March 3 employee meeting that most of the cotton
stored in the Respondent's warehouses would not be
there if the employees "went union" was not grounded
on any objective appraisal made known to the employ-
ees. Rather, it is clear from the credited evidence that
Cowan was speculating about how Couch from Calcot
would react to storing cotton in a unionized warehouse
on the basis of nothing more than their long acquaint-
anceship and even further conjecture about the Respond-
ent's own rate structure in the event of unionization. The
contrast pictured by Cowan to the effect that employees
would have off season work if they voted against the
Union serves to emphasize the conclusion I have made
that Cowan's remarks at the March 3 meeting were spe-
cifically designed to intimidate the employees. A similar
contrast is seen in his further remarks that he could
"work up a contract" if the employees rejected the
Union but that he would negotiate strictly with the
Union if the employees voted the other way. In both in-
stances, the message from Cowan's remarks is unmistak-
able-selecting the Union would mean less work and a
much more difficult negotiating posture; rejecting the
Union would mean more work and a much easier negoti-
ating posture. The Respondent's claim that it had already
received all of the work from Calcot it was going to re-
ceive during the 1982-1983 season is probative only of
the credibility issues raised by the conflicting testimony.
Clearly, this fact, if true, does not prove that Cowan did
not use the carrot and stick argument grounded on Cal-
cot's work in the course of the March 3 meeting. The
Respondent's claim that the employees "knew" the
Calcot work was no longer coming in because the trucks
which hauled Calcot's cotton had not been evident re-
cently is indicative of limp nature of this entire argu-
ment.
Cowan's remarks at the March 3 meeting do not fall
within the protection of Section 8(c) of the Act because
they cannot be legally characterized as "carefully
phrased" predictions based on objective facts designed to
convey the Respondent's belief "as to demonstrably
probable consequences beyond the [the Respondent's]
control . . . ." NLRB v. Gissel Packing Ca, 395 U.S.
575, 618 (1969). It is concluded that Cowan's remarks at
the March 3 meeting were impermissible threats and
promises which violated Section 8(a)(l1) of the Act.
In addition, Cowan's remark to Lazo shortly following
the meeting to the- effect that Calcot's cotton would not
be stored at the Respondent's warehouse is merely a con-
tinuation of the same unlawful theme he played 2 hours
earlier in the meeting with all of the employees. Accord-
ingly, it is concluded that Cowan's remark to Lazo indi-
vidually was also a threat of adverse consequences if the
employees "went union" and violated Section 8(aXl) of
the Act.
I also reject the Respondent's claim that Cowan's in-
quiry as to which way Lazo intended to vote should be
overlooked as an isolated incident. Factually, that claim
itself is unsupportable where, as here, it occurred on the
same day that Cowan made the other unlawful threats
and promises found above. However, entirely aside from
the fact that it was not an isolated instance of coercive
conduct, I am not satisfied that such an employer's in-
quiry as to how an employee intends to vote in a secret-
ballot representation election should ever be excused on
that ground. Moreover, it is impossible to perceive of
any justification for such an inquiry especially on the day
before a scheduled election designed to resolve a ques-
tion concerning representation. I conclude, therefore,
that Cowan's interrogation of Lazo concerning his
voting intention was coercive and that it violated Section
8(aXl) of the Act.
With respect to the alleged objections to the March 4
election, it is the Board's usual policy that serious unfair
labor practices during the critical period prior to the
election are, a fortiori, grounds for setting aside election
results if timely objections are filed. All of the unfair
labor practices found herein occurred on the day before
the third election in connection with the employer's elec-
tion campaign. In these circumstances, it is fair to con-
clude that the Respondent sought to maximize the effect
of its unlawful conduct on the election outcome, and it is
reasonable to infer that the election result was tainted by
the Respondent's unlawful conduct. Accordingly, the
Union's objections to the result of the third election are
sustained. It is recommended that the third election be
set aside and that a new election be conducted at a time
deemed appropriate by the Regional Director. It is fur-
ther recommended in this connection that the Regional
Director include in the notice of election to be issued the
following paragraph consistent with the Board's deci-
sions in Lufkcin Rule Co, 147 NLRB 341 (1964); Bush
Hog, Inc., 161 NLRB 1575 (1966):
Notice to All Voters
The election conducted on March 4, 1983, was
set aside because the National Labor Relations
Board found that certain conduct of the Employer
interfered with employees' exercise of a free and
reasoned choice. Therefore, a new election will be
288
TVA TERMINALS
held in accordance with the terms of this notice of
election. All eligible voters should understand that
the National Labor Relations Act, as amended,
gives them the right to cast their ballots as they see
fit, and protects them in the exercise of this right,
free from interference by any of the parties.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices of the Respondent found to
exist in section III above, occurring in connection with
the Respondent's operations described in section I above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having concluded that the Respondent has violated
the Act in the manner specified above, it is recommend-
ed that the Respondent be required to cease and desist
therefrom and to post the notice to employees in order
to apprise employees of their rights and to effectuate the
purposes of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating an employee, threaten-
ing employees with adverse consequences if they voted
for the Union, and promising employees benefits in the
form of added work and a written agreement, the Re-
spondent engaged in unfair labor practices within the
meaning of Section 8(aX1) of the Act, and engaged in
conduct which affected the results of the March 4, 1983
representation election.
4. The Respondent did not violate the Act in any
other manner.
5. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
On these findings of fact and conclusions of law and
on entire record, I issue the following recommended6
6 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them uWll be deemed waived for all pur-
pOL
ORDER
The Respondent, TVA Terminals, Inc., Wilmington,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating its employees concerning
their activities or sympathies for International Long-
shoremen's and Warehousemen's Union.
(b) Threatening employees with adverse economic
consequences or conduct evidencing an unwillingness to
reach a collective-bargaining agreement if the employees
select International Longshoremen's and Warehouse-
men's Union to represent them.
(c) Promising employees that they will receive addi-
tional work or that it will prepare a written contract as a
substitute for a collective-bargaining agreement if they
reject International Longshoremen's and Warehouse-
men's Union as their representative in a representation
election conducted under the Act.
(d) In any other like manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Post at all of its locations in the Wilmington, Cali-
fornia area copies of the attached notice marked "Appen-
dix." 7 Copies of the notice, on forms provided by the
Regional Director for Region 21, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director of Region 21 within
20 days from the date of this Order what steps the Re-
spondent has taken to comply with its terms.
IT IS FURTHER ORDERED that the election conducted
on March 4, 1983, in Case 21-RC-16932, be set aside and
that said case be remanded to the Regional Director for
Region 21 for the purpose of conducting a new election
at such time as he deems the circumstances permit the
free choice of a collective-bargaining representative.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges other unfair
labor practices not specifically found herein.
I If this Order is enforced by a Judgment of a United Sates Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeal Enforcing an Order of the Nation-
al Labor Relations Board."
289