Stone'S Express, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1154 (N.L.R.B. 1984)

1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stone's Express, Inc. and Hotel Employees and Res-
taurant Employees Union, Local 5, AFL-CIO,'
Petitioner. Case 37-RC-2704
14 December 1984
DECISION AND ORDER DIRECTING
HEARING
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 19 November 1982 and the Regional
Director's report recommending disposition of
them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 12 for the Petitioner, none for the Interve-
nor, 4 against the participating labor organizations,
with 6 challenged ballots, an insufficient number to
affect the results.
On 26 November 1982 the Employer filed timely
objections to the election. An investigation of the
objections was conducted and thereafter on 23 De-
cember 1982 the Regional Director issued and
served on the parties his Report on Objections in
which he recommended that the Employer's objec-
tions be overruled in their entirety.
Thereafter on 5 January 1983 the Employer filed
timely exceptions to the Regional Director's report,
contending that a hearing should be held to resolve
the factual issues raised by the three objections. On
13 January 1983 the Petitioner filed an answering
brief to the Employer's exceptions.
The Board has reviewed the record in light of
the exceptions and briefs and hereby adopts the
Regional Director's findings and recommendations
except as modified herein.
The Board has indicated two situations where
supervisory participation in union organizing cam-
paigns may be objectionable. 2 The first is where
employees may be led to believe that the supervi-
sor was acting on behalf of the employer and that
the employer favors the union. Here, it is clear that
former supervisor Simbahon strongly favored the
Petitioner. According to the employee affiant, Sim-
bahon indicated to him after the employees began
to discuss unionization that "It's good you guys are
going Union." The affiant further indicated that he
knew Simbahon was "pushing for the Union" and
that Simbahon "was very close to most of the em-
ployees and it was common knowledge that he was
supporting the Union." Notwithstanding these
1 Hawaii Teamsters and Allied Workers Local 996 is an Intervenor
herein
2 See Stevenson Equipment Go, 174 NLRB 865 (1969), Turner's Ex-
press, 189 NLRB 106 (1971)
comments, our dissenting colleague finds no cause
for concern in Simbahon's conduct because he
characterizes Simbahon's statement in support of
the Union merely as his personal opinion and he
finds no evidence that Simbahon was speaking on
behalf of the Employer. However, he has missed
the focus of Stevenson Equipment, supra, in so con-
cluding. As the Board noted in Stevenson Equip-
ment "if supervisors actively encourage employees
to vote for the Union, and the employer takes no
stance to the contrary, the supervisory conduct
might well imply to the employees that the em-
ployer favors the Union." 3 The Board in Stevenson
further noted that "[a]ny such impression will be
dissipated . . . if, in one way or another, the em-
ployer's antagonism to the Union is brought to the
attention of the employees." 4 The problem in this
case, however, is that the Regional Director has
supplied no details on the Employer's position on
unionization. In the face of Simbahon's strong sup-
port of the Petitioner, such evidence is crucial to
the Board's disposition of the objection.
A second concern of the Board in analyzing
whether supervisory participation in union organiz-
ing is objectionable is the posssibility that such
conduct would coerce an employee into supporting
the union out of a fear of future retaliation by a
union-oriented supervisor. The Board's decision in
Sheraton Motor Inn 5 is instructive in this regard.
There the Board found objectionable the strong
prounion activities of a "major" supervisor. The
Board did not analyze that supervisor's particular
comments to determine whether they were them-
selves coercive. Rather, the Board stated that:
While the record does not show Gibbons [the
supervisor] gave any indication to employees
that he would use his authority as supervisor
to punish those who failed to support the
Union, we believe, given Gibbons' consider-
able supervisory authority and his active and
outspoken support of the Union throughout
the organizational campaign, that there is a
reasonable "possibility that [his] conduct could
coerce an employee into supporting the
union."6
Given the Board's approach in Sheraton, there are
at least three issues in the instant case which have
yet to be addressed fully and which will not be re-
solved absent a hearing. First, there is the question
whether Simbahon was a "major" supervisor like
Gibbons in Sheraton. The affiant describes him as
3 174 NLRB at 866 (emphasis added)
4 Ibid
5 194 NLRB 733 (1971)
6 Id at 734
273 NLRB No. 141
STONE'S EXPRESS

1155
"Manager" but the Regional Director did not
elaborate on his status. Another question concerns
the real extent of his campaign activities. The affi-
ant states Simbahon was "pushing for the Union"
and was "supporting the Union." The Regional Di-
rector did not pursue the matter further to deter-
mine the extent of Simbahon's organizing efforts.
And lastly the question arises as to whether Simba-
hon was working at the Employer at the time of
the election. Although Simbahon is referred to by
the parties as a "former" manager it is not clear
whether he was working at the Employer when
the election was held. This fact would certainly be
relevant in determining whether his conduct ulti-
mately was sufficient to set aside the election.7
In sum, the Employer's Objection 1 concerning
Simbahon's actions raises substantial material factu-
al issues which have not yet been resolved and a
hearing is necessary.3
ORDER
It is ordered that the above-entitled matter is re-
ferred to the Regional Director for Region 20 for
the purpose of conducting a hearing on the Em-
ployer's Objection 1 in accordance with the terms
of this decision and that said Regional Director is
authorized to issue notice of hearing.
IT IS FURTHER ORDERED that the hearing officer
designated for the purpose of conducting the hear-
ing pursuant to this Order shall prepare and cause
to be served on the parties a report containing res-
olutions of credibility of witnesses, findings of fact,
and recommendations to the Board as to the dispo-
sition of said objection. Within 10 days from the
date of issuance of said report, either party may file
with the Board in Washington, D.C., eight copies
of exceptions thereto. Immediately upon the filing
of such exceptions, the parties filing the same shall
serve a copy thereof on the other party, and shall
file a copy with the Regional Director. If no ex-
ceptions are filed thereto, the Board will adopt the
recommendations of the hearing officer.
7 See Stevenson Equipment, supra; Sheraton Motor Inn, supra.
6 In spite of Simbahon's comments, our dissenting colleague also con-
tends that his remarks showed no preference for either union in this two-
union case. The remarks themselves belie the contention that Simbahon
was not pushing a particular union. Further, we note that the Regional
Director indicated that Simbahon spoke to the affiant sometime between
mid-August and mid-September. The election was not conducted until
November and the Employer states that Intervenor had not yet formally
moved to intervene when the remark was made. Clearly, the import of
the affiant is that Simbahon favored a particular union and it seems rea-
sonable to conclude that the union was the Petitioner. At the very least, a
material issue of- fact exists on this issue which, taken in conjunction with
the balance of the case, is further reason for a hearing.
We adopt the Regional Director's findings and recommendations with
respect to Objection 2. We also adopt the Regional Director's recommen-
dation to overrule Objection 3 since it appears that the conduct discussed
in this objection was prepetition conduct. See Ideal Electric & MA. Co,
134 NLRB 1275 (1961).
MEMBER ZIMMERMAN, dissenting in part.
Contrary to the majority, I find no sufficient
basis for directing a hearing on the Employer's Ob-
jection 1 which alleges impermissible supervisory
sponsorship and electioneering by former manager,
Al Simbahon.
I note at the outset that mere supervisory partici-
pation in a union's organizational campaign does
not necessarily warrant setting aside an election.1
The Board has found that such participation can
constitute grounds for setting aside an election
where: (1) employees may be led to believe that
the employer favors the union; and (2) employees
may be coerced into supporting the union out of
fear of future retaliation by a union-oriented super-
visor. The evidence produced by the Employer
does not show that either situation exists in this
case.
In support of its allegation of impermissible su-
pervisory participation, the Employer produced an
affidavit of a single employee who states that some-
time after the employees began to discuss the
union, Simbahon came up to him after lunch in
back of the office, at a time when no one else was
present, and said, "It's good you guys are going
union." The employee states, "I know [Simbahon]
was pushing for the Union," he was "very close"
to most of the employees, and it was common
knowledge that he supported the Union.
Assuming the truth of these assertions, the Em-
ployer has not made out a prima facie case. 2 Noth-
ing in the employee affidavit suggests that Simba-
hon misled employees into believing that the Em-
ployer was in favor of the Union. Simbahon's state-
ment to the employee witness does not indicate he
was speaking on behalf of the Employer. At the
most it amounted to nothing more than his person-
al approval of the employees' "going union." Such
evidence, which is all that the Employer—the
moving party—has offered, is not sufficient to
show Simbahon's conduct had a tendency to inter-
fere with the employees' free choice in the elec-
tion.3
Similarly, this evidence fails to indicate that the
employees had reason to believe that Simbahon
would engage in reprisals against them in the event
Turner's Express, 189 NLRB 106 (1971); Stevenson Equipment Co., 174
NLRB 865 (1969).
2 Since the Employer has not presented a prima facie showing of sub-
stantial and material issues which would warrant setting aside the elec-
tion, It is not entitled to an evidentiary hearing. E.g., Modesto Brothers,
255 NLRB 828, 829 (1981).
3 Since it cannot be found on the evidence presented that Simbahon's
conduct could have led employees to believe that the Employer favored
unionization, It is immateria! to resolving the merits of Objection 1
whether the Employer in fact conducted an antiunion campaign capable
of dissipating an impression that the Employer favored unionization. Ad-
miral Petroleum Corp., 240 NLRB 894, 895 (1979).
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they rejected the Union. 4 Surely Simbahon's state-
ment was not inherently threatening. And there is
no evidence that Simbahon did anything to indicate
that he would use whatever authority he possessed
to punish those who did not join the Union. Even
assuming that Simbahon was a "major" supervisor,
the degree of his supervisory authority cannot,
4 It is significant to note that Simbahon is a former manager of the
Respondent As the record now stands, it is not clear when Simbahon left
the Respondent's employ in relation to the alleged objectionable remark
or the election Clearly, however, if Simbahon was terminated before the
election, there would be no basis to find this conduct objectionable, as
offending supervisors, once no longer employed, are incapable of exerting
any coercion See El Caballo, 251 NLRB 46 (1980)
standing alone, render his conduct objectionable.5
Accordingly, I find Simbahon's conduct did not
interfere with the employees' free choice in the
election. 6
Based on the foregoing, I would adopt the Re-
gional Director's recommendation to overrule the
Employer's objection without a hearing, and, as the
tally of ballots shows that the Petitioner has re-
ceived a majority of the valid votes cast, I would
certify the Petitioner as the employees' representa-
tive.
5 Admiral Petroleum Corp, supra at 897 (1979)
6 The Regional Director found, and I agree, that Simbahon's statement
showed no preference for either union in this two-union case