Station Operators

National Labor Relations Board - Board Decisions

Apr 27, 1992

307 N.L.R.B. 263 (N.L.R.B. 1992)

263
307 NLRB No. 37
STATION OPERATORS
1 We find distinguishable from the present case Plumbers Local
162 (Natkin & Co.), 283 NLRB 1160 (1987), and Alyeska Pipeline
Service Co., 261 NLRB 125 (1982), cited by the Employer in sup-
port of its exception to the Regional Director’s recommendation to
overrule its objection regarding the Petitioner’s letter distributed to
employees on about July 31, 1991. In Plumbers Local 162, the
Board found that a union violated Sec. 8(b)(1)(A) of the Act by dis-
criminating against nonmembers in the operation of its exclusive hir-
ing hall. In Alyeska Pipeline, the Board found that a union engaged
in objectionable conduct by suggesting during an election campaign
that members would have an advantage over nonmembers in obtain-
ing jobs through the union’s exclusive hiring hall. The situation pre-
sented here is not akin to the hiring hall contexts in those two cases,
where the union controlled access to jobs. In addition, the Peti-
tioner’s letter does not promise to represent or treat members dif-
ferently from nonmembers, but rather sets forth the benefits that al-
legedly could be obtained from collective bargaining and union
membership. Such statements do not exceed the bounds of privileged
campaign propaganda. See Dart Container, 277 NLRB 1369–1370
(1985); Smith Co., 192 NLRB 1098, 1101 (1971).
Member Oviatt notes that the Employer in its brief asserts that it
‘‘did not raise any issue of ‘truth’’’ but rather ‘‘discrimination.’’ He,
therefore, finds it unnecessary to pass on Midland National Life In-
surance Co., 263 NLRB 127 (1982), upon which the Regional Direc-
tor relied.
2 The Employer has renewed its motion, first made to the Regional
Director, to expand the record, as defined by Sec. 102.69(g) of the
Board’s Rules and Regulations. We deny the motion for the reasons
set forth by the Regional Director in his January 8, 1992 letter to
the Employer.
3 Member Devaney finds the instant case distinguishable from
Phillips, but also notes that be dissented in that case. Chairman Ste-
phens, who did not participate in Phillips, agrees that it is distin-
guishable. He expresses no view on whether it was correctly de-
cided.
4 We, however, do not rely on the Regional Director’s character-
ization of the incidents at issue as ‘‘relatively mild.’’
Station Operators, Inc. and Local 371, United Food
and Commercial Workers Union, AFL–CIO,
Petitioner. Case 34–RC–1038
April 27, 1992
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on August 1, 1991, and the attached Regional Di-
rector’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Elec-
tion Agreement. The tally of ballots shows 18 for and
6 against the Petitioner, with 2 challenged ballots, an
insufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief, has adopted the Regional Direc-
tor’s findings and recommendations,1 and finds that a
certification of representative should be issued.2
In adopting the Regional Director’s recommendation
to overrule the Employer’s objection relating to the
interruption by the Petitioner’s representatives of the
Employer’s campaign meeting on its premises 2 weeks
before the election, we agree with the Regional Direc-
tor’s finding that this case is distinguishable from Phil-
lips Chrysler Plymouth, 304 NLRB 16 (1991).3 In
Phillips, the Board set aside an election based on the
refusal of two union representatives to stop talking to
unit employees and to leave the employer’s shop area
approximately 75 minutes before the election. The
Board relied on the fact that the union representatives
‘‘repeatedly and belligerently refused to heed requests
of the employer’s president to leave’’ the premises,
even after the police were summoned and 75 minutes
before the election. The Board found that the union
agents’ conduct conveyed to employees the message
that the employer was powerless to protect its own
legal rights in a confrontation with the union. The
Board also observed in Phillips that the impact of the
incident was especially significant because a shift of
one vote could have changed the outcome of the elec-
tion.
In contrast, here the Petitioner’s representatives’
confrontations with the Employer’s officials during the
employee meeting occurred 2 weeks before the elec-
tion, and the results of the election were not close. In
addition, unlike in Phillips, the Petitioner’s representa-
tives left the premises when told to do so by the Em-
ployer’s officials, after being on the scene for approxi-
mately 5 minutes in each of three instances.4 Accord-
ingly, this is not a situation in which the Petitioner’s
representatives directly challenged the Employer’s
property rights in a manner that would tend to interfere
with employees’ free and uncoerced choice in the elec-
tion.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Local 371, United Food and Com-
mercial Workers Union, AFL–CIO, and that it is the
exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time service station
attendants/cashiers employed by the Employer at
its Fairfield I-95 East/West locations; excluding
all office clerical employees and guards, profes-
sional employees and supervisors as defined in
the Act.