Admiral Petroleum Corp.

National Labor Relations Board - Board DecisionsFeb 23, 1979

240 N.L.R.B. 894 (N.L.R.B. 1979)

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Admiral Petroleum Corporation and Local Union No. 653, International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of Amer- ica, Petitioner. Case -RC-15300 February 23. 1979 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN FANNING ANI) MEMBRS J NKINS ANI) MIRPIIY 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 September 15, 1977, and the Hearing Officer'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 exceptions and brief and hereby adopts the Hear- ing Officer's findings and recommendations. We note that our dissenting colleague would find. contrary to the Hearing Officer, that the prounion conduct of Richard Ryde, a supervisor, was objec- tionable and would consequently set the election aside. The apparent basis for this view is that Ryde's actions could possibly have a coercive effect on some of the employees. However, the record provides no basis for such speculation as to the possible effects of Ryde's innocuous statements. The Hearing Officer properly analyzed all the evidence and applied the current standard. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Local Union No. 653. In- ternational Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America. and that, pursuant to Section 9(a) of the National Labor Rela- tions Act, as amended, the said labor organization is 'The election wa;s conducted pursuanl to a Stipulation for (ertilflicatlon Upon (onsent lection, he aliv was three fr and two agaulst the Peti- tuioner: there was one challenged ballot, sufficlent in number to ffect the result. The Employer filed timely ohjections and on Nomhber 4. 1977. the Regional l)irector issued his Report on ObJections and ( halleged HBallot, recommending that the challenge he sustiined, that ()hjectioln 23. 4. ;iid 5 he oserruled, and that a hearing he directed on Objection I. In an unpub- lished decison dated Ma, 5. 1978. the Hoard adopted the recomminenda iion that Objections 4 and 5 he o,serruled and adopted pr, rrarn the reciomme cn- dation that the challenge be sustained and that (Objecti 3 he erruled. hut ordered a hearing to resolve factual issues raised h, broth Obhections I and 2 (Member Jenkins would not hare ordered a hearing on Objectrn 21 Pursuant to notice. a hearing as held on Ma! 31. 1978,. and the l;earlng! Officer's report on objections and recomnmendations issued n June 5.IS 1978. 240 NLRB No. 122 the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bargaining with respect to rates of pay. wages. hours of employment, or other conditions of employment: All regular full-time and part-time production and warehouse employees including truck driv- ers, employed at the Employer's Kingston, Mas- sachusetts, location, excluding office clerical employees, guards and supervisors as defined by the Act. MIMBEIR MURPHY. dissenting: Contrary to my colleagues in the majority, I would set the election aside on grounds that Ryde's preelec- tion conduct was coercive in nature and interfered with the employees' freedom of choice in selecting a bargaining representative. Ryde was a "major" supervisor in the sense that he had a large degree of control over the employment conditions of all the employees in the bargaining unit. The conduct objected to involved Ryde's orga- nizational activity and support of the Union. The Hearing Officer found that Ryde signed a union au- thorization card, told employees in the production area that he had done so, and told them he thought they all might be able to get better working condi- tions. Ryde stated to the part-time employees in par- ticular that if the Union succeeded in its organizing campaign they might be able to get more regular hours and better pay. The Hearing Officer conclud- ed, and the majority agrees, that Ryde's statements were merely expressions of his own thoughts and would not lead the employees to fear possible retri- bution at his hands in the event they rejected the Union. Therefore, the Hearing Officer concluded that "[w]hile the degree of supervisory authority may serve to exaggerate the coercive nature of a statement by making it more likely that a threat will in fact be carried out, it cannot be used to render objectionable a non-coercive statement of pro-union opinion, such as those made by Ryde." I disagree. The Board has consistently held that supervisory participation in organizational activity can have two different objectionable effects on employees.2 First, where "supervisors actively encourage employees to vote for the union and the employer takes no known stance to the contrary," the supervisory conduct might well imply to the employees "that the em- ployer favors the union." The second conceivable effect of such supervisory activity involves the possi- bility that the supervisor's conduct could coerce an employee into supporting the union out of fear of -xteenil .' quipu,rctr (oiparnl. 174 N IRB 6, 86 (19691 t"rl! I7utri r ]tln ( rwnprol h a Xlhertatn (fritr Inn. 194 N RB 733, 734 ( 1971 .Stcc nn uFqupment, t ( r partin. sprta ADMIRAL PETROLEUM CORPORATION 895 future retaliation by a union-oriented supervisor. With regard to the question of whether Ryde's pro- union activity would lead employees to believe the Employer favored the Union, the Hearing Officer found that, although there was no evidence that the Employer conducted an antiunion campaign, "[wlhat is relevant is the substance of Ryde's statements. whether or not seen by the employees as reflecting the employer's position." However, Stevenson, sulra. stands for the proposition that a supervisor's pro- union activity, if otherwise sufficient to have a ten- dency to interfere with the employees' free choice in the election, is objectionable unless the employer ex- presses a contrary position. In the instant case, the Employer had never spoken to the employees with regard to the Union, nor had it ever distributed an3 literature or sent any information to the employees concerning unionization. Consequently, it was not clear to the employees what the Employer's position was on unionization and, conceivably, the employees might well have been led to believe by Ryde's pro- union conduct that the Employer favored unioniza- tion. I find that the absence of a position taken b the Employer is, in view of the extent of Ryde's en- couragement of the Union's organizing and his con- siderable supervisory authority.4 enough to find Ryde's conduct objectionable under the first Ste- venson test. With regard to the second possible effect of Ryde's prounion activity, i.e., the employees' possible fear of retaliation in the event the Union lost the election, the majority, in adopting the Hearing Officer's re- port, concludes that Ryde's activity was not objec- tionable since his statements to the employees were not such as to lead the employees to fear possible retribution. The Hearing Officer also found that Ryde did not give any indication to employees that he would use his authority to punish those who did not support the Union. These conclusions, however, do not take into account some of the factual circum- stances of the situation. It is clear that the employees were aware that, after the election, they would continue to be directly su- pervised by Ryde, and this fact might well have caused them concern about the consequences of his displeasure should the Union be defeated. Similarly. fear of possible harassment or discrimination against them could have influenced the employees to vote for the Union.; In particular, the majority appears to have failed to consider that in this case the factors constituting objectionable conduct under the second Stevenson test are especially compelling with regard to the regu- lar part-time employees, Steve DeMeure and Bobby Morris. DeMeure and Morris were students who would normally call in to Ryde on their lunch hour at which time Ryde would tell them whether he had work available for them. The frequency and the amount of time that these part-time employees worked were determined by the production schedule which Ryde established. Ryde also had complete dis- cretion as to whether production needs should be ful- filled by using the part-timers or scheduling overtime for full-time employees. Consequently, it is clear that RNde in fact determined what the hours for De- Meure and Morris would be, or. indeed, whether they would work at all. Thus, it is obvious that Ryde's ability to affect the employment status of these regular part-time employees was considerable. Furthermore, Ryde occasionally drove DeMeure and Morris home after work and admitted using these trips to speak in favor of the Union. Both De- Meure and Morris were well aware of Ryde's oppor- tunities to affect their employment status. Consider- ing the nature of the occasions on which Ryde spoke to these two employees in the light of the above fac- tors, it is unreasonable to find that Ryde's conduct was not coercive. While the statements themselves may not have been threatening in substance, the\ were in the nature of promises of increased work and paN if the Union won, and the surrounding circum- stances may have reasonably caused DeMeure and Morris to feel threatened with the prospect of not being called for work if the Union lost the election. Given the fact that Ryde's conduct could reason- ably have been perceived as coercive to the employ- ees, and in light of the lack of evidence to indicate the mployer's opposition to the Union, I find that Rvde's conduct reasonably tended to interfere with the employees' freedom of choice and thereby consti- tuted objectionable conduct. Accordingly, I would set aside the election and direct that a second elec- tion be held. 4 Rdce as the onl? person from the front office who s orked in the hackroom and sas the oniy supervisor in the backroom. in Ili1wn I,,,r Inn. II d h a Sheraloin MotoSr Inn. upra. the Board set aside ain election based on he conduct of a uper isor Cho had solicited alhrlll ion cards, had auctively and outspokenl\ adsol-ated union repre- sentation, and was actie in the organizational campaign. he Board found that. hlue he supervisor did not gire an ndicaltin to emploees that he vould use hiasauthorits as a supervisor to punish those ho failed to sup- port the union. his considerable authorit\ and his outspoken support of the union gae rise to a reasonable possibilit 5 that [his] conduct could coerce n11 emplo.ee intoi supporting the t nn " APPENDIX Ohection No. 2. The parties stipulated at the hearing that Richard Ryde was, at all material times, a supervisor within the meaning of the Act. He was plant foreman, in 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge of the production area of the Employer's plant where five employees, including himself, worked. Ryde was in charge of employing and sche- duling casual and part-time employees according to the amount of orders to be filled ' and would partici- pate in the employment of full-time employees. He was also in charge of assigning work and granting overtime to all the production employees. About 50 percent of Ryde's time was spent doing nonsupervi- sory production work. [Employer President] Yekhtikian's office was in another part of the plant, but he would be in and out of the production area a few times each day. His relationship with the employees was a fairly friendly one and employees with problems or grievances would sometimes go to him, sometimes to Ryde. Ryde participated in the union campaign in the summer of 1977 by signing a union authorization card and talking in favor of the union to the employ- ees in the production area. He told them that he had signed a card, but he himself did not solicit any cards. He told them he thought that they all, includ- ing himself, would be able to get better working con- ditions and that the part-time employees might be able to get more regular hours and perhaps better pay. These discussions were of a conversational na- ture. Ryde spoke to the employees about his thoughts about the union three or four times over the course of the summer. No evidence was presented about the opinions about the union held or communicated by Yekhtiki- an, [employee agent] O'Leary or any other agent or employee of the Employer. Objection No. 2: The Board has consistently held that "mere super- visory participation in a union's organizing campaign does not, without a showing of possible objectionable effects, warrant setting aside an election." Gary Air- craft, 220 NLRB 187 (1975). The leading case, Ste- venson Equipment Company, 174 NLRB 865 (1969), set forward two areas of inquiry relevant to a show- ing of such objectionable effects. The first is the de- gree to which employees may infer from the supervi- sory conduct that the employer favors the union. In the instant case, Ryde expressed his own thoughts about the effect that union representation might have on his own working conditions and those of the other employees. Although there is no evidence that higher management disagreed with his position, there is also no evidence that any employees might have believed that Ryde was speaking on behalf of higher manage- ment. In fact, because Ryde spent about 50 percent Ryde had informed the part-time employees that their hours depended on the amount of orders that the Employer had. of his time working with the other employees at non- supervisory duties and was on the eligibility list for the election, employees may well have assumed that Ryde was speaking as one employee to another. The Board has not had occasion to consider a case where, as here, there is no evidence about the posi- tion taken by any supervisor other than the prounion supervisor. It is my conclusion that the election should not be set aside even though there is no evi- dence that the employer conducted an antiunion campaign. What is relevant is the substance of Ryde's statements, whether or not seen by the em- ployees as reflecting the employer's position. It is clear that an employer may, in the course of a union organizing campaign. express an opinion that a union would not benefit its employees and the em- ployer is opposed to a union. Just so, an employer may communicate a prounion opinion. As the Su- preme Court stated in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. 618 (1969): [An] employer is free to communicate to his em- ployees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." The communications in the instant case do not contain such unlawful or objectionable elements. Rather, Ryde only expressed his own opinions that the union might benefit himself and the other em- ployees. As such, they do not constitute grounds for setting the election aside. The second conceivable effect of such supervisory activity noted in Stevenson is "found in the implica- tions of the continuing relationship between the sup- ervisor and the employees," 171 NLRB at 866; namely, the possibility that such conduct could coerce an employee into supporting the union out of fear of future retaliation by a union-oriented super- visor. In analyzing this second effect, the Board has looked not only to the substance of the supervisory conduct, but also to other factors which would tend to exaggerate the effects of coercive prounion state- ments. I find that given the totality of the circumstances, Ryde's activity was not objectionable under this sec- ond Stevenson test. Ryde's statements in favor of the union were hardly "so marked or inordinate as to lead the employees to fear possible retribution at [his] hands in the event that they rejected the union." 174 NLRB at 866. They were not threatening in nature nor did he give any indication to employees that he would use his authority to punish those who did not support the union. Turner's Express, Inc., 189 NLRB ADMIRAL PETROLEUM CORPORATION 897 108 (1971). It is true that Ryde was a "major" super- visor in the sense that he had a large degree of con- trol over the employment conditions of all the em- ployees in the bargaining unit. In Flint Motor Inn Co., d/b/a Sheraton Motor Inn, 194 NLRB 733 (1971), the Board emphasized the extensive authority of the prounion supervisor, in its decision to set aside the election. The present case is distinguishable, how- ever, in that the statements in Flint, e.g., that if the employees did not vote for the union, the Company might cut wages, were threatening statements, re- gardless of the degree of authority of the supervisor who made them. While the degree of supervisory au- thority may serve to exaggerate the coercive nature of a statement by making it more likely that a threat will in fact be carried out, it cannot be used to render objectionable a noncoercive statement of prounion opinion, such as those made by Ryde. See also Wil- lett Motor Coach, Inc., 227 NLRB 882 (1977). It is also noted that unlike the situation in Flint, employees in the instant case had a friendly relation- ship with the president of the company, Yekhtikian, and were able to go either to him or to Ryde with their grievances and problems. There is no evidence that they did not feel they could appeal to Yekhtiki- an in the event of any unlawful reprisal against them for opposing the union. I conclude, therefore, that under neither Stevenson test can it be said that Ryde's conduct unreasonably influenced the employees' choice, thereby requiring that the election be set aside.