Hahn Property Management Corporation

National Labor Relations Board - Board Decisions

Aug 20, 1982

263 N.L.R.B. 586 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hahn Property Management Corporation and Serv-
ice Employees International Union, Local Union
#18, AFL-CIO, Petitioner. Case 20-RC-15428
August 20, 1982
DECISION AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered the objections to an
election 1 held on December 4, 1981, and the
Acting Regional Director's report recommending
dispositidn of same. The Board has reviewed the
record in light of the exceptions and brief, and
hereby adopts the Acting Regional Director's find-
ings and recommendations.
The Acting Regional Director found, and we
agree, that the Employer engaged in objectionable
conduct as a result of statements made by the Em-
ployer's general manager to employees prior to the
election. General Manager Woodle admitted that
he told employees if the Petitioner won the elec-
tion "communication would now be employee to
union to management. I said this creates an adver-
sary relationship. They could no longer talk to me
directly about wages, problems, complaints."
Our dissenting colleague, in finding nothing ob-
jectionable in these statements, claims to appreciate
the Board's proper role in overseeing representa-
tion elections. However, his position is based on
employer rights under Section !(c), which specifi-
cally is limited in its application to unfair labor
practice proceedings and therefore provides no
direct guidance for representation election con-
duct. 2 The general manager's statements are con-
trary to the statutory proviso to Section 9(a) of the
Act that employees in a collective-bargaining unit
will still be able to meet directly with management
and to present and adjust grievances. In addition,
the statements expressly threaten an "adversary re-
lationship" between unit employees and manage-
ment.
In order to claim there is no threat in the general
manager's statement that direct access to manage-
ment would be eliminated should the employees
select a representative, our colleague seriously dis-
torts that statement. In this diluted version, the
The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was four for, and seven against,
the Petitioner; there were no challenged ballots.
' General Shoe Corporation, 77 NLRB 124 (1948). In any event Sec.
8(c) provides no protection for threats contained in employer statements.
See Dal-Tex Optical Company, Inc., 137 NLRB 1782 (1962).
263 NLRB No. 80
manager stated only that the selection of a bargain-
ing representative necessarily changes the relation-
ship between the employer and its employees. We
would have less quarrel with such a statement had
it been made. The statement actually made, howev-
er, threatens a particular adversary relationship
which would allegedly preclude the survival of in-
dividual rights, contrary to the express intent of the
proviso to Section 9(a).
Further, the dissent's reliance on Eagle Comtron-
ics, Inc., 263 NLRB No. 70 (1982), is misplaced, as
that case involved merely an incomplete statement
of employee rights, not a statement in contradiction
of employee rights as here. The latter type of state-
ment does not involve mere legal technicalities and
is not to be excused by speculation that it is based
on ignorance of the law. Here, the general manager
expressly conditioned the continued enjoyment of
the Employer's practice to allow direct communi-
cation between management and employees on the
employees' rejection of the Petitioner. This unam-
biguous threat has no basis in any section of the
Act and is conduct tending to interfere with the
employees' free choice in the representation elec-
tion. See Sacramento Clinical Laboratory, Inc., 242
NLRB 944 (1979).
[Direction of Second Election omitted from pub-
lication.] 3
MEMBER HUNTER, dissenting:
I cannot agree with my colleagues' decision to
sustain the Petitioner's Objection 7 and direct a
rerun election. In brief, that objection alleged, and
the Acting Regional Director's investigation re-
vealed, that approximately 3 weeks before the elec-
tion the Employer's general manager, Woodle, en-
gaged in discussions with individual employees. As
noted by the Acting Regional Director, Woodle
conceded in his affidavit that, among other things,
he told employees that if the Petitioner won the
upcoming election "communication would now be
employee to union to management. I said this cre-
ates an adversary relationship. They could no
longer talk to me directly about wages, problems,
complaints."
The Acting Regional Director concluded that
Woodle's remarks are objectionable as they consti-
tute "clear misstatements of employee rights under
Section 9(a) of the Act"; he further noted that simi-
lar statements have been construed as a "threat" to
deprive employees of their right to direct commu-
nications with management concerning grievances.
I disagree. In my view the Employer merely ex-
ercised its right under Section 8(c) of the Act to
acquaint employees with the fact that, in the event
I [Excelsior footnote omitted from publication.]
586
HAHN PROPERTY MANGEMENT CORPORATION
of a union election victory, the relationship be-
tween an employer and its employees necessarily
changes since there is then a statutory representa-
tive with whom the employer must bargain over
terms and conditions of employment. I see no
threat, direct or implied, in such a simple statement
of fact. Nor am I persuaded that a different result
should obtain merely because the Employer, had it
been of a mind to do so and had it been sufficiently
knowledgeable in the law, might have gone on to
explain to employees in detail all the provisions of
Section 9(a) of the Act, including the proviso lan-
guage.4 In this connection compare Eagle Comtron-
ics, Inc., 263 NLRB No. 70 (1982), which involves
the degree of detail required of an employer which
4 The proviso permits an employee or employees to present grievances
to their employer and to have such grievances adjusted, without the in-
tervention of the bargaining representative, as long as the adjustment is
not inconsistent with the collective-bargaining agreement, and provided
further that the representative has been given an opportunity to be
present at such adjustment.
exercises its free speech right to inform employees
that they are subject to replacement in the event of
an economic strike. In the instant case, as in Eagle,
an appreciation of this Agency's proper role in
overseeing representation matters, coupled with a
modicum of commonsense, compels the conclusion
that this Board has no business engaging in a
strained and hypertechnical reading of campaign
material as a basis for overturning an election.
Indeed, as then Chairman Miller succinctly put it,
when we insist upon a too purist view of what par-
ties may say in election campaigns "the practical
result is that freedom of choice has been frustrated
by a highly technical application of a principle
I agree with this sentiment and, accordingly, I
would not sustain the objection.
I See Bill's Institutional Commissary Corporation. 200 NLRB 1148
(1972) (concurring opinion).
587