Bell Security

National Labor Relations Board - Board Decisions

Jul 30, 1992

308 N.L.R.B. 80 (N.L.R.B. 1992)

80
308 NLRB No. 15
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Acting Regional Director found merit in Objection 1, but at
one point inadvertently referred to it as Objection 3. We correct the
inadvertence.
The Employer requested review only of the Acting Regional Di-
rector’s finding as to Objection 1.
1 The polling took place in a classroom on the sixth floor.
Bell Security, Inc. and Allied International Union,
Petitioner. Case 29–RC–7860
July 30, 1992
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
Employer’s request for review of the Acting Re-
gional Director’s Supplemental Decision on Objections
and Direction of Second Election is denied as it raises
no substantial issues warranting review. A copy of the
relevant portions of the Acting Regional Director’s de-
cision is attached.1
APPENDIX
SUPPLEMENTAL DECISION ON OBJECTIONS
AND DIRECTION OF SECOND ELECTION
Upon a petition for certification filed on July 9, 1991 by
Allied International Union, herein called the Petitioner, and
pursuant to a Decision and Direction of Election issued by
the Regional Director on March 20, 1992, an election by se-
cret ballot was conducted on April 24, l992 in a unit consist-
ing of all full time and regular part time security guards em-
ployed by the Employer at its Staten Island, New York
branch excluding all office clerical employees, professional
employees and supervisors as defined in the Act.
The Tally of Ballots served upon the parties at the conclu-
sion of the election showed the following results:
Approximate number of eligible voters..........50
Number of void ballots.....................................0
Number of votes cast for Petitioner................15
Number of votes cast against participating
labor organization.........................................18
Number of valid votes counted.......................33
Number of challenged ballots...........................1
Number of valid votes counted plus
challenged ballots..........................................34
Challenges are not sufficient in number to affect the
results of the election.
A majority of the valid votes counted plus chal-
lenged ballots has not been cast for Petitioner.
Thereafter, on May l, l992 the Petitioner filed objections
to the results of the election. The objections allege, verbatim,
as follows:
1. Bell security by its agents, Local 803 of the Inter-
national Brotherhood of Teamsters, engaged in conduct
designed to undermine the Allied International Union
by urging the members of the bargaining unit to vote
against Allied International Union. Upon information
and belief, a Mr. McRay, an officer of Local 803, en-
gaged in a campaign designed to undermine Allied
International.
. . . .
Pursuant to Section 102.69 of the Board’s Rules and Reg-
ulation, Series 8, as amended, the Regional Director caused
an investigation to be made of the objections, during which
all parties were afforded a full opportunity to submit evi-
dence bearing on the issues. The investigation disclosed the
following:
The Employer is a New York corporation with its prin-
cipal office and place of business located at 501 5th Avenue,
New York, New York where it is engaged in providing secu-
rity services for various establishments located in New York
and New Jersey.
THE OBJECTIONS
All the Petitioner’s objections concern a leaflet distributed
by an agent of Local 803, International Brotherhood Team-
sters, AFL–CIO, prior to the election. The leaflet is attached
hereto as Exhibit A. Because each objection alleges that
803’s conduct is objectionable under a different theory, I will
first discuss, the facts, which are largely undisputed, and then
discuss each objection separately.
Albert Fenza and Peggy Vanson, business agents for the
Petitioner, gave affidavits. They state that on the evening
prior to the election, they heard that Local 803 had distrib-
uted the leaflet. Because it was late in the evening, Ms.
Vanson only had the opportunity to speak to 2 guards by
phone to attempt to rebut the assertions made in the leaflet.
The election was conducted the following day at two poll-
ing places, one classroom located at the Saint George cam-
pus of Staten Island Community College, and another class-
room located at the college’s Sunnyside campus. Vanson and
Fenza visited both campuses on the morning of the election.
Vanson stated that when they arrived at the Saint George
campus at about 7:00 a.m. they saw Kenneth McKay, the
Vice President of Local 803 in the hallway on the first floor
sitting at a table.1 There were abour six security guards in
the hallway at the time. On the main desk was a pile of the
aforementioned leaflets with a copy of Mr. McKay’s busi-
ness card at the top. Fenza and Vanson told the board agent
conducting the election about what they had seen, and went
to the Employer’s Sunnyside campus. At that campus, they
saw him. The Petitioner provided no evidence, even in the
form of hearsay, that the Employer assisted 803 in its actions
or otherwise endorsed them.
McKay gave an affidavit. He admitted distributing the
leaflet in question the evening before the election. However,
he stated that he did not do any campaigning on the morning
of the election, but just went to both polling places to make
sure the polls had opened.
McKay contends that in the leaflet he was describing the
situation as accurately as he could, and that he was respond-
ing to literature produced by the Petitioner. He stated that it
was his understanding that this case had already been before
the Board for two and a half years. He further asserted that
various agents of the Employer had informed him that if a
majority of employees voted for the Petitioner, it would file
objections. Based upon the past history of the case before the
81BELL SECURITY
Board, he did not expect the Board to resolve the objections
expeditiously. McKay also did not expect the Employer to
continue making contributions to 803’s Health and Welfare
fund while objections were pending. He thus expected em-
ployees to be in a state of ‘‘limbo,’’ with no health and wel-
fare benefits while the objections were pending. Among the
literature that McKay stated he was responding to was a let-
ter from the Petitioner’s attorney to Petitioner’s business
agent Fenza, concerning how a victory by the Petitioner
could effect employees’ health and welfare coverage, a copy
of which is attached hereto as Exhibit B. Fenza admits that
he gave a copy of the letter to George Downer, 803’s shop
steward. Downer asserts that he left a copy of the letter on
his desk for about 2 days before the election, but he did not
know if other employees read it.
A review of the history of this case shows that on July
31, 1989 Allied International Union filed a petition in Case
No. 29–RC–7104 seeking an election among a unit of all full
time and regular part time security officers employed by the
Employer at Staten Island Community College. On June 20,
1991 the Regional Director issued a Decision and Order dis-
missing the Petition. Thereafter, on July 19, 1991 the Peti-
tioner refiled the Petition and amended the unit to include all
full time and regular part time security officers employed at
the Employer’s Staten Island branch. A hearing was held
concerning the appropriateness of the unit, and the case was
transferred to Region 28 for the limited purpose of issuing
a Decision. On March 20, 1992 the Regional Director for
Region 28 issued a Decision and Direction of Election. The
Employer filed a Request for Review of said Decision. By
Order dated April 20, 1992 the Board denied the Employer’s
Request for Review. Accordingly, the election was conducted
on April 24, 1992. Although Local 803 is the bargaining rep-
resentative of the employees in the unit, it was not accorded
a place on the ballot because it admits nonguards to member-
ship.
. . . .
Objection No. 1
In Petitioner’s Objection No. 1, the Petitioner alleges that
803 attempted to undermine the Petitioner by urging employ-
ees to vote against it. As noted earlier, although 803 was
technically a third party, it may be appropriate to examine
its conduct under the Board’s standards applied to first par-
ties because of its intense involvement in the case and its sta-
tus as the incumbent union. I will therefore again examine
its conduct under both standards.
The leaflet from Local 803 states that a vote for the Peti-
tioner means ‘‘No health and welfare benefits until appeal is
ruled on (another 2-1/2 years).’’ The message on the leaflet
is clear: If employees select the Petitioner as their collective
bargaining representative, they will have no health and wel-
fare benefits until the Board certifies the election, which may
not occur for another two and a half years. Such an assertion
is bound to have an impact upon employees. Because of
803’s status as incumbent union, it would appear to be in a
position to know whether the 803 health and welfare fund
would terminate coverage for employees during the hiatus
between the election and the certification or whether the Em-
ployer would continue to make contributions during the pe-
riod. It would also not be unreasonable for employees to
conclude from the assertions in this leaflet that 803 would
cause its health and welfare fund to terminate the employees’
coverage during the hiatus. In Willey’s Express, Inc., 275
NLRB 631 (1985), the Board found that a union agent’s
statement to employees that they were illegally covered
under a trust fund to which the employer made contributions
because the employer was not a party to a collective bargain-
ing agreement, constituted an implied threat that they would
lose their insurance coverage unless they voted for union rep-
resentation. The Board found this to be coercive and set
aside the election. The Board found this conduct to interfere
with employees’ freedom of choice regardless of whether the
trust fund coverage was illegal and regardless of whether the
union had the right to investigate the trust fund. In the in-
stant case, the leaflet clearly threatens employees with an im-
mediate cessation of coverage if they select the Petitioner as
their representative. This is coercive regardless of whether
the 803 health and welfare fund had the right to cease cov-
erage prior to the issuance of any Board certification and re-
gardless of whether the Employer could lawfully cease con-
tributions to that fund pending a certification. It is also noted
that the leaflet was distributed the evening before the elec-
tion, which did not afford the Petitioner an adequate oppor-
tunity to respond, and that the outcome of the election was
determined by 3 votes.
Alternatively, even viewing 803’s conduct as that of a
third party, I would find it to be objectionable. Among the
factors the Board examines in analyzing threats not attrib-
utable to a party are the ability of the person making the
threats to carry them out, their dissemination, and their tim-
ing in relation to the election. See Westwood Horizons,
supra. As earlier noted, it would appear reasonable for em-
ployees to conclude that 803 had the ability to cause its
health and welfare fund to terminate the employees’ cov-
erage or to at least be in a unique position to know about
the Employer’s and fund’s intentions. The leaflet was admit-
tedly distributed to several employees and the Petitioner did
not have an adequate opportunity to respond to the leaflet.
I also do not conclude that the effects of the leaflet were
dissipated by the Petitioner’s attorney’s letter to his client
written three days earlier (Exhibit B). That letter merely
states that if the 803 fund ceased coverage, it would still be
obligated to provide coverage under COBRA, in which case
the employees would have to pay for their own coverage. It
is also not clear that this letter was widely disseminated
among employees.
In view of the above, I find the threats made in the letter
to be objectionable under both the standards applied to first
and third parties. I therefore direct that Petitioner’s Objection
No. [1] be sustained and that the election be set aside. Ac-
cordingly, I direct that a new election be conducted.
[Direction of Second Election omitted from publication.]