SCIENTIFIC ALTANTA, INC. 467 Scientific Atlanta, Inc. and Local 1609 of the Inter- national Brotherhood of Electrical Workers, AFL-CIO, Petitioner . Case 10-RC-12957
7 February 1986
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN The National Labor Relations Board, by a three- member panel, has considered objections to an election held 29 June 1984 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 490 for and 1207 against the Petitioner, with 30 chal- lenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and briefs, has adopted such of the hearing officer's findings and recommendations as are consistent with the following decision, and finds that the election must be set aside and a new election held. In upholding the hearing officer's recommenda- tion that the election be set aside, we specifically rely on her findings that the Employer- engaged in objectionable conduct in four separate instances discussed below, all within the critical period. The initial finding of objectionable conduct con- cerned the Employer's disparate treatment of prounion and antiunion employees in allowing the distribution of campaign literature and other mate- rials during worktime and in work areas . There is ample evidence that the Employer, through its agents, acquiesced in an antiunion employee's dis- tribution activities for a 2-week period leading up to the election, when the same rights were denied those who supported the Union.I Second, like the hearing officer, we fmd objec- tionable the Employer's giving its campaign materi- al to eligible voters to distribute in work areas during worktime. There was evidence that at least six group leaders passed out the literature, and did so at the Employer's request.2 To require employ- ees to disseminate antiunion literature violates the Section 7 right to engage in union activity' or to^ re- frain from engaging in activity for any 'party during the election campaign. Additionally, we find objectionable a supervi- sor's remarks to an employee that he "would be sorry that he got involved in the union activities."s Although the supervisor claims that his remark was made in jest, we find that such a statement tends to coerce employees in the exercise of Section 7 rights and to affect the results of the election. Ac- cordingly, we adopt the hearing officer's finding with respect to this conduct. Finally, we adopt the hearing officer's finding that another statement made by a supervisor to a unit employee, to the effect that the Union had al- ready hurt employees by holding back benefits they would have already gotten, is objectionable conduct. The supervisor also stated that the Em- ployer could not give the employees benefits be- cause of the upcoming election. We agree that such statements tend to be coercive and therefore inter- fere with the employees' free and untrammeled choice in an election.4 Although the Board established in General Shoe Corp., 77 NLRB 124, 127 (1948), that representa- tion elections are to be conducted under "laborato- ry conditions" in order to ensure that employees have the opportunity to make an uninhibited choice, the Board has refused to overturn elections in which preelection misconduct is de minimis with respect to its effect on the results of an election.5 Whether a party's misconduct warrants setting aside the election depends on "the number of viola- tions, their severity, the extent of dissemination, the size of the unit, and other relevant factors."s In the instant case, ' there is evidence that a signif- icant number of unit employees were affected by the Employer's objectionable conduct. In the build- ing where the Employer disparately tolerated an- tiunion campaigning there were 305 unit employ- ees. Although the record does not specify the exact number of employees affected by the group lead- ers' handing out antiunion literature, there is testi- mony that one group had 28 employees and an- other 9 to 11.7 Concerning the supervisor's threat i We find it unnecessary to pass on the hearing officer's finding that the antmmon adherent was not told to remove unlawfully posted cam- paign literature. In adopting the finding of disparate treatment , we also find it unnecessary to pass on the hearing officer's conclusion that the Employer gave favored treatment to antiunion adherents by punishing them less severely than union adherents for similar misconduct.
2 In upholding the hearing officer's finding of objectionable conduct in this instance , we do not rely on her inference that not only these six group leaders, but all other group leaders, were required to distribute the Employer's antiunion literature Nor do we find it necessary to pass on the hearing officer's finding that a voting employee's selling "vote no" T- shirts was done at the request, or with the blessing , of the Employer.
8 The hearing officer recognized that the employee who received this threat was a sensitive person. We find it unnecessary to rely on this fact.
4 In upholding this objection we do not pass on the hearing officer's finding that the Employer actually withheld benefits by depriving the employees of information regarding the results of an evaluation of the Company's job classification system. a Caron International, 246 NLRB 1120 (1979).
6 Ibid.
7 Although we find six group leaders handed out literature , there is no evidence indicating the size of the other four groups or the extent of dis- semination within those groups . Concerning one of these four groups, an employee testified that he was sure that^at least one other member of his group received the materials.
278 NLRB No. 69
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to an employee that he would be sorry for getting involved in union activities, there is no evidence that the threat was disseminated . There is, howev- er, evidence that the statement concerning the Em- ployer's withholding of benefits was discussed among a group of 23 employees. Thus, a minimum of 330-340 employees in the 1934-employee unit were potentially affected by the misconduct. Unlike cases in which one or two employees are affected by a single instance of objectionable mis- conduct and there is little or no evidence of dis- semination," the extent of the effect of the miscon-
9 The Board has found in certain cases that isolated violations during the critical period -did not warrant the direction of a second election. In Caron International, supra, unlawful conduct affecting one employee in an 850-employee unit, with no evidence of dissemination , was held to be too minimal to have prevented a free election where the employer's duct here cannot be determined with any mathe- matical certainty.' Because we find that the miscon- duct in this case was far more than de minimis, however, we adopt the hearing officer's recom- mendation that the election be set aside.9 [Direction of Second Election omitted from pub- lication.] margin of victory was 66 votes. Likewise, in Thermo King Corp, 247
NLRB 296 (1980), a foreman's violative statement made to one employee in a 500-employee unit, with no evidence of dissemination, was held too insignificant to justify setting aside the election where the employer's margin of'victory was 132 votes. See also General Felt Industries, 269
NLRB 474 (1984). 9,Because we find the objectionable conduct discussed above sufficient to overturn the election, we find it unnecessary to rely on the hearing officer's further finding that the Employer also engaged in objectionable conduct when its agents told employees that, if the Union were voted in, bargaining would start at zero.
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