Testing Service Corp.

National Labor Relations Board - Board Decisions

Sep 22, 1971

193 N.L.R.B. 332 (N.L.R.B. 1971)

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Testing Service Corporation and International Union
of Operating Engineers, Local 150, AFL-CIO,
Petitioner . Case 13-RC-12339
September 22, 1971
SUPPLEMENTAL DECISION AND
ORDER DIRECTING A HEARING
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 13, an
election by secret ballot was conducted by said
Regional Director on May 6, 1971. At the conclusion
of the election, the parties were furnished a tally of
ballots which showed that of approximately 26
eligible voters, 15 cast ballots, of which I was for, and
10 against, the Petitioner. There were 4 challenged
and no void ballots. The challenged ballots were not
sufficient in number to affect the results of the
election. Thereafter, the Petitioner filed timely objec-
tions to conduct affecting the results of the election.
In accordance with National Labor Relations
Board Rules and Regulations, the Regional Director
investigated the issues raised by the objections, and
on June 30, 1971, issued his Report on Objections in
which he recommended that Objection 1(c), (d), and
(e) and Objection 2 be overruled, that Objection 1(a)
be sustained and the election be set aside, and in the
alternative that a hearing be held with respect to
Objection 1(b). Thereafter, the Employer filed timely
exceptions to the Regional Director's recommenda-
tions as to Objection 1(a) and (b).
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has delegat-
ed its powers in connection with this case to a three-
member panel.
The Board has considered the Regional Director's
Report, the Employer's exceptions thereto, and the
entire record in this case and makes the following
findings:
Contrary to the Regional Director, we are of the
opinion that the Employer's speech 2 days before the
election did not directly or indirectly threaten two
employees with reprisals for assisting the Union at the
representation hearing; nor can the Employer's single
reference to a strike if the employees voted for the
Union, in the context in which it was uttered, be taken
as an attempt to instill in its employees a fear of the
adverse effects of collective bargaining or imply that it
would be futile for employees to select a labor
organization to represent them. As we see the latter
remark, it was no more than an expression of concern
over the Employer's competitive position if the Union
were to demand wage increases of $3 to $4 an hour as
it had indicated during its campaign. Accordingly, we
overrule Objection 1(a).
Objection 1(b), however, concerns remarks alleged-
ly made by a supervisor to four employees. The
Regional Director recommended that a hearing be
held to resolve certain credibility issues in the event
the Board did not adopt his recommendation with
respect to Objection 1(a). Since at least one version of
the alleged remarks might be found to have interfered
with the election and since a factual question has been
raised, we shall order that a hearing be held with
respect to Objection 1(b).
ORDER
It is hereby ordered that a hearing be held before a
duly designated Hearing Officer for the purpose of
receiving evidence to resolve the issues raised with
respect to the Petitioner's Objection 1(b).
IT IS FURTHER ORDERED that the Hearing Officer
designated for the purpose of conducting such
hearing shall prepare and cause to be served on the
parties a report containing resolutions of the credibili-
ty of witnesses, findings of fact, and recommenda-
tions to the Board as to the disposition of said
objection. Within the time prescribed by the Board's
Rules and Regulations, either party may file with the
Board in Washington, D.C., an original and seven
copies of exceptions thereto. Immediately upon the
filing of such exceptions, the party filing the same
shall serve a copy thereof on the other party and shall
file a copy with the Regional Director. If no
exceptions are filed thereto, the Board will adopt the
recommendations of the Hearing Officer.
IT IS FURTHER ORDERED that the above-entitled
matter be, and it hereby is, referred to the Regional
Director for Region 13 for the purpose of conducting
such hearing, and that the said Regional Director be,
and he hereby is, authorized to issue notice thereof.
MEMBER FANNING, dissenting:
For the reasons set forth by the Regional Director in
his Report on Objections, I would sustain Objection
1(a) and set aside the election.
193 NLRB No. 49