B. J. Titan Service Co.

National Labor Relations Board - Board DecisionsSep 19, 1989

296 N.L.R.B. 668 (N.L.R.B. 1989)

668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. J. Titan Service Company and International Union of Operating Engineers , Local 12, AFL- CIO, Petitioner . Case 28-RC-4651 September 19, 1989 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS The National Labor Relations Board, by a three- member panel, has considered objections to an election held January 27, 1989, and the hearing of- ficer's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement . The tally of ballots shows 16 for and 2 against the Petitioner . There were no challenged ballots. The Board has reviewed the record in light of the exceptions ' and briefs , has adopted the hearing officer's findings2 and recommendations , and finds i In the absence of exceptions , we adopt , pro forma, the hearing offi- cer's findings and conclusions on Objection 2 x In adopting the hearing officer's finding that comments by Supervisor Kenny did not coerce unit employees , we rely solely on his conclusion that the employees were not led to believe that the Employer favored the Union or to fear retaliation from a union -oriented supervisor We further find it unnecessary to rely on his citation of Century City Hospital, 281 NLRB 35 (1986). We agree with the Employer that the hearing officer's report does not discuss the Employer's separate argument that Kenny's comments-inso- far as he reported alleged plans for antiunion retaliation by James DuPont , the Employer's district manager-coerced employees into voting for the Union in order to secure protection from antiunion retalia- tion, but we find no merit to this argument Threats concerning possible antiunion retaliation by management are generally held to have a reason- able tendency to coerce employees into declining to support a union, even that a certification of representative should be issued. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for International Union of Op- erating Engineers, Local 12, AFL-CIO and that it is the exclusive collective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees in- cluding operators , mechanics, and drivers em- ployed by the Employer at its Nevada Test Site; excluding all other employees , service su- pervisors, service engineer trainees , office cler- ical employees , professional employees , guards and supervisors as defined in the Act. when such threats are conveyed to employees by a friendly supervisor See, e g , Central Broadcast Co., 280 NLRB 501, 501 fn 5, 53 1-532 (1986) (statements by Supervisor MacKinnon). It would be anomalous to rely on a supervisor's communication of such threats to set aside an election won by the union , notwithstanding that the supervisor had suggested to em- ployees that the union might be able to protect them from the discrimina- tory actions allegedly planned by the employer Under the Employer's theory, whenever an employer threatened employees with retaliation and a union promised to seek to protect them against such retaliation , an elec- tion victory by the union would have to be found tainted by the combi- nation of employer threats and union promises Such a proposition is con- trary to the well-established principles that "a party to an election is ordi- narily estopped from profiting from its own misconduct," Republic Elec- tronics, 266 NLRB 852, 853 ( 1983), and that statements that stress the benefits of union representation in terms of job security constitute "per- missible partisan appeal[s ] for union support " NLRB Y Superior Coatings, 839 F.2d 1178, 1181 (6th Cit. 1988), see Smith Co, 192 NLRB 1098, 1101 (1971). We note that in Dreyers Grand Ice Cream, 279 NLRB 817 ( 1986), a case not cited by the Employer, a divided board panel set aside an elec- tion on the basis of a supervisor 's statements similar to those in issue here As Dreyers is inconsistent with our decision today, it is overruled. 296 NLRB No. 88