Skogrand-Buesing, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1979

241 N.L.R.B. 292 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Skogrand-Buesing, Inc. and International Union of
Operating Engineers, Local No. 9, AFL-CIO, Peti-
tioner. Case 27-RC-5716
March 20, 1979
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MFMBHRS JENKINS, MURPHY, AND TRUESDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered objections to an elec-
tion' held on July 13, 1978,2 and the Regional Direc-
tor's report, pertinent parts of which are attached
hereto as an appendix, recommending disposition of
same. The Board has reviewed the record in light of
the Employer's exceptions and brief, and hereby
adopts the Regional Director's findings and recom-
mendations.3
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for International Union of Op-
erating Engineers. Local No. 9, AFL-CIO, and that,
pursuant to Section 9(a) of the National Labor Rela-
tions Act, as amended, the said labor organization is
the exclusive representative of all the employees in
the following appropriate unit for the purposes of col-
lective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of em-
ployment:
All service department employees including me-
chanics, helpers, welders and parts employees
employed by the Employer at the Employer's fa-
cility at 2630 Delta Drive, Colorado Springs,
Colorado; but excluding all office clerical em-
ployees, truckdrivers, guards and supervisors as
defined in the Act.
MEMBER MURPHY, dissenting:
Contrary to my colleagues in the majority and the
Regional Director, I would set the election aside on
grounds that Supervisor Redd's admitted threats that
employee Ellis would be fired if he did not vote for
the Union violated the laboratory conditions neces-
sary for the holding of a free and fair election.
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was three for, and one against the Peti-
tioner; there was one challenged ballot, an insufficient number to affect the
results.
2 All dates hereinafter are 1978 unless otherwise indicated.
We share our colleague's concern for maintaining an election atmosphere
free of coercion. However, we cannot ignore well-settled principles of
agency, and we will not allow an employer to object successfully to its own
coinduct, whether such conduct be pro or antiunion.
Although there can be no question that a supervi-
sor's statement to an employee that the latter will be
discharged if he does not vote in accordance with the
supervisor's desires is objectionable, the majority re-
fuses to set the election aside and adopts the Regional
Director's finding that the Employer was afforded but
did not avail itself of the opportunity to disavow the
supervisor's conduct. The Board's objective in repre-
sentation proceedings is the holding of free and fair
elections. However, the effect of the majority's hold-
ing here is to "punish the Employer" for its inaction
rather than to insure that the election is conducted in
an atmosphere free of coercion, and thus their con-
cern is misplaced. Indeed, the majority has neglected
to consider the possibility that the results of the elec-
tion may not represent the free choice of the employ-
ees. and hence they may be "punishing" the employ-
ees as well. The fact that there were only
approximately four employees in the unit renders it
even more likely that the threat was repeated; there-
fore, such a consideration is all the more compelling.
Rather than uphold the election result here, where
there is at least a question as to the true desire of the
employees, the Board's objective of holding free and
fair elections would be better served by setting the
election aside.
The foregoing is not be taken as a conclusion that I
would never find that an employer's failure to dis-
avow supervisory conduct requires that the employer
not benefit by its own inaction. Indeed, I agree with
the holdings of Diversified Products Corporation, 199
NLRB 1024 (1972); and Talladega Cotton Factory,
Inc., 91 NLRB 470 (1950), both cited by the Regional
Director. In those cases, however, the supervisory
participation in the union campaign was relatively in-
significant, and, unlike the instant case, there was no
allegation that a prounion supervisor had threatened
an employee with discharge if the latter failed to vote
for the union. Accordingly, I find those cases inappo-
site to the situation presented here. On the basis of all
the foregoing, I would sustain the objection and re-
luctantly set the election aside.
APPENDIX
Objection No. I
1. Throughout the preelection campaign the Union used
Mr. Steve Redd, a company supervisor, to actively aid the
Union in its organizational efforts to solicit and secure au-
thorization cards from the Company's employees. Said su-
pervisory employee threatened, intimidated, and coerced
employees working in the bargaining unit in an effort to
secure their support on behalf of the Union.
Objection No. 2
2. Specifically, on or about July 7, 1978, Mr. Steve Redd,
a Company supervisor, initiated a converation with a mem-
241 NLRB No. 40
292
SKOGRAND-BUESING, INC.
ber of the bargaining unit and informed him that when the
Union got in, Redd would see that the employee would be
fired if he did not vote for the Union in the election.
The Employer's objections relate to similar or identical
incidents and conduct and therefore those objections will be
consolidated for the purposes of this report.
The investigation disclosed that on or about June 20,
1978, employee Mickey Ellis, mechanic, began employment
with the Employer. Discussion with other employees re-
vealed he was not in favor of the Union. About July 6,
1978, Ellis was working his night shift and was at the shop
at 11:00 p.m. Ellis, in his affidavit, stated Redd came into
the shop and engaged him in a conversation concerning the
upcoming election. Ellis advised Redd he was not in favor
of the Union. Redd told Ellis if he didn't vote for the Union
he would see that Ellis was fired. Ellis replied that Redd
might as well see that he was fired. Redd. in his affidavit,
admits making the threat.
Ellis further stated in his affidavit that the following Sat-
urday, July 8, 1978, he had a conversation with Company
President Thomas Buesing. Ellis initiated the conversation
and advised Buesing that Redd had discussed the Union
with him and that Redd had told him if he didn't vote for
the Union Redd would see that he was fired. Ellis told
Buesing he did not mind discussing the Union but he did
not like threats. Ellis stated that Buesing didn't respond and
the two of them had a general conversation with Buesing
giving Ellis a "verbal back patting." Buesing states in his
affidavit that Ellis advised him of Redd's threatening him
with his job, and he replied to Ellis that he though[t] Ellis
was doing a "good job."
It is the union's position that Redd did not act as agent
for the union and has never been an agent of the union.
Further, if Redd did engage in such activity, he did so only
on his own.
Under the assumption that Redd is a supervisor, as the
Employer contends, it does not appear that Redd's threat is
grounds for setting aside the election. The Board has held
that where the Employer has knowledge of supervisory par-
ticipation in union activity, as is the case here, and does not
seek to dissipate any possible coercive effect of such ac-
tivity, it will not allow the Employer to take advantage of
its inability to control its supervisory staff. See Diversified
Products Corporation, 199 NLRB 1024 (1972), and Tallade-
ga Cotton Corporation, 91 NLRB 470 (1950). In the instant
case the Employer (through Buesing) had ample opportuni-
ty to disavow Redd's threat of Ellis and thereby attempt to
dissipate any possible effects of said threat on the results of
the election. Instead, Buesing merely chose to ignore the
threat and engage in an innocuous conversation which in-
cluded some faint praise of Ellis' ability to perform his job.
Under these circumstances, I find that there is insufficient
grounds for setting aside the election.
293