Drew University

National Labor Relations Board - Board Decisions

Apr 30, 1976

223 N.L.R.B. 1183 (N.L.R.B. 1976)

DREW UNIVERSITY 1183
Drew University and Local Union 1310 , Maintenance
& Custodial Division, International Brotherhood of
Painters and Allied Trades, AFL-CIO, Petitioner.
Case 22-RC-6539
April 30, 1976
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS , PENELLO, AND WALTHER
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 November 14, 1975,l and the Acting
Regional Director's report recommending disposi-
tion of same. The Board has reviewed the record in
light of the exceptions and brief in support thereof,
and hereby adopts the Acting Regional Director's
findings 2 and recommendations.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Local Union 1310, Mainte-
nance & Custodial Division, International Brother-
hood of Painters and Allied Trades , AFL-CIO, and
that, pursuant to Section 9(a) of the National Labor
Relations Act, as amended, said labor organization is
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 , and other terms and
conditions of employment:
All full-time and regular part -time maintenance
and custodial employees , including mechanics,
mechanic helpers , custodians, truckdrivers,
groundskeepers , maids , and store keepers, em-
ployed by the Employer at its 36 Madison Ave-
nue, Madison , New Jersey campus ; excluding
all office clerical employees , professional em-
ployees , part-time and seasonal student employ-
ees, guards and supervisors as defined in the Act
and all other employees.
1 The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 21 for, and 19 against, the Petitioner;
there were no challenged ballots.
MEMBER JENKINS, concurring:
Although I agree with the result reached by my
colleagues, I cannot accept the rationale on which
they rely. In concluding that the Employer's objec-
tion to the election should be overruled, my col-
leagues find it unnecessary to determine whether or
not group leader Irene Smiley was viewed by the em-
ployees as a spokesperson for management, because
they consider the statements attributed to Smiley to
be in no way related to the election or its outcome.
Smiley is alleged to have mentioned to four employ-
ees, who were on their way to the polls, that Ralph
Smith, the University's director of physical plant,
had told her (Smiley) that there were too many em-
ployees working in their area, that changes would
have to be made, and that they would have to work
harder.
Unlike my colleagues, I am unable to conclude
that remarks of this nature are divorced from the
election or its outcome simply because no direct ref-
erence to either was made during the course of the
remarks. The employees might well question what
prompted such a comment at a time when they were
on their way to vote, and it would hardly be unrea-
sonable for such employees to interpret the statement
as a not-so-veiled threat to reduce jobs and impose
more onerous working conditions if the Union were
successful in the election, as in fact it was. Thus, in
ordinary circumstances, I would find it necessary to
determine whether or not Smiley *as a spokesperson
for management and was considered to be such by
the employees before I could resolve the objection.
Here, however, even if it be assumed that Smiley's
remarks can properly be attributed to the Employer,
they cannot be said to have affected the results of the
election because the threat, if in fact one was made,
was directed against the Union, but the Union never-
theless received a majority of the valid votes cast in
the election. In such circumstances, we do not permit
the party guilty of misconduct to use that misconduct
as a basis for having an election overturned in its
favor.'
For the foregoing reasons, I concur in the result
reached by my colleagues.
2 We agree with the Acting Regional Director that the alleged objection-
able conduct did not constitute election interference because the statements
were in no way related to the upcoming election or its outcome . We there-
fore find it unnecessary to pass on his other grounds for overruling the
objections.
3 Cf. Decatur Transfer & Storage, Inc., 178 NLRB 63 (1969); Packerland
Company, Inc., 185 NLRB 653 (1970).
223 NLRB No. 172