1176

313 NLRB No. 200

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1 All dates are in 1993 unless otherwise specified.2 The Employer’s objection states:

The Employer asserts that supervisory taint and influence per-meates the pre-election period as a result of the activities of cer-tain team leaders, whom the Board determined to be statutorysupervisors. The Employer believes that statutory supervisors notonly signed authorization cards and attended union meetings, butalso solicited support for the union. Most recently, in the weekpreceding the election one team leader, Chris McElroy, urged atleast three employees to vote for the union, thereby intimidatingunit employees.

3 The August 12 Decision and Direction of Election found theseteam leaders to be statutory supervisors. The Employer announcedthis at an August 20 meeting of employees and told employees thatteam leaders were not to discuss the Union with them.

4 The Petitioner has excepted to some of the hearing officer’scredibility findings. The Board’s established policy is not to overrulea hearing officer’s credibility resolutions unless the clear preponder-ance of all the relevant evidence convinces us that they are incorrect.Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basisfor reversing the findings.

5 Employee Carol Graddy testified that she asked McElroy why theEmployer had to have a union on July 9. McElroy told Graddy thata union would make it harder for the Employer to fire employeesand the employees would get more money.

6 McElroy supervised approximately five employees, Ellis super-vised two, and Patterson three.

7 Ribbon Sumyoo Corp., 308 NLRB 956, 965 fn. 13 (1992). Seealso Meridian Industries, 302 NLRB 464, 466 (1991).

8 Sil-Base Co., 290 NLRB 1179, 1181 (1988). See also Turner’sExpress, 189 NLRB 106 (1971).

Pacific Physicians Services, Inc. d/b/a U.S. FamilyCare San Bernadino and Miscellaneous Ware-housemen, Drivers and Helpers, Local 986,International Brotherhood of Teamsters, AFL–CIO, Petitioner. Case 31–RC–7080

April 29, 1994

DECISION AND CERTIFICATION OFREPRESENTATIVE

BY MEMBERS STEPHENS, DEVANEY, AND COHEN

The National Labor Relations Board, by a three-member panel, has considered an objection to an elec-tion held on September 9, 1993,1 and the hearing offi-cer’s report recommending disposition of it. The elec-tion was conducted pursuant to the Regional Director’sDecision and Direction of Election issued on August12. The tally of ballots shows 14 for and 7 against thePetitioner, with 3 challenged ballots, an insufficientnumber to affect the results.

The Board has reviewed the record in light of theexceptions and adopts the findings, conclusions, andrecommendations of the hearing officer only to the ex-tent consistent with this decision.

The Employer alleged that prounion conduct by su-pervisors tainted the election and coerced employees.2The hearing officer assessed the evidence presented atthe hearing and concluded that three team leaders3 en-gaged in prounion conduct. We agree with the hearingofficer’s evidentiary findings.4 He found that TeamLeader Christine McElroy, in talking to small numbersof employees, told them that the benefits of having aunion included better pay and benefits and job protec-tion. McElroy made these statements beginning inJuly5 and continuing until a week before the Septem-

ber 9 election. Also, sometime in July, McElroy, to-gether with fellow Team Leader Brenda Ellis, askedemployee Joan Caffiel how she would vote and triedto tell her that ‘‘there were pros to go with the union’’and that they thought Caffiel should vote for theUnion. In addition, Team Leader Serena Patterson, likeMcElroy, told small numbers of employees that thebenefits of having a union included better pay and ben-efits and less likelihood of being fired. Patterson madethese statements up until about 2 days before the elec-tion.6 Meanwhile, however, the Employer conductedan antiunion campaign, including a mandatory meetingon or about August 20, where it identified the teamleaders as supervisors and told employees the teamleaders were not to speak for or against the Union.

The hearing officer noted correctly that prounionconduct of statutory supervisors may constitute objec-tionable conduct warranting setting aside an election intwo situations: (1) when the employer takes no standcontrary to the supervisors’ prounion conduct, thusleading employees to believe that the employer favorsthe union; or (2) when the supervisors’ prounion con-duct coerces employees into supporting the union outof fear of future retaliation by, or rewards from, thesupervisors.7 Because the Employer’s antiunion posi-tion was communicated to the employees, the hearingofficer found that he was left with an issue concerningthe second element. He further found that the conductof McElroy, Ellis, and Patterson was grounds to set theelection aside. In making this latter finding, the hearingofficer noted that the unit was small, consisting of ap-proximately 24 employees, that the 3 team leadersmaking the prounion statements supervised in aggre-gate 10 employees, and that these statements weremade over a period of several months, until just priorto the election.

We do not agree with the hearing officer. We arenot persuaded that the prounion statements uttered bythe three team leaders constituted ‘‘coercion’’ that war-rants setting aside the election. The statements at issuewere not inherently coercive and we find no reason toview a supervisor’s prounion statements with moresuspicion than a supervisor’s antiunion statements. Thestatements were expressed as personal opinions with-out any hint of retaliation or reward.8 At the sametime, the Employer made clear throughout the electioncampaign its opposition to the Union, so there couldbe no confusion in employees’ minds regarding wherethe Employer stood. We note also that employeesmight naturally seek the opinion of their team leaders

1177U.S. FAMILY CARE SAN BERNADINO

9 Wright Memorial Hospital v. NLRB, 771 F.2d 400, 405 (8th Cir.1985).

10 We note that the cases cited by the hearing officer are eitherdistinguishable or actually support overruling the objection here. InSheraton Motor Inn, 194 NLRB 733 (1971), the Board found thata ‘‘major’’ supervisor’s active and outspoken support for the unionthroughout the organizational campaign, including the day of the

election, warranted setting aside the election and ordering a newelection. The supervisor solicited the authorization cards that sup-ported the petition, was the union’s ‘‘contact man’’ during the orga-nizational campaign, met with various union officials on a regularbasis including on the day of the election, exhorted employees inces-santly to vote for the union, and told employees that if they did notvote for the union, management intended to cut wages. Clearly thispervasive conduct far exceeds the occasional prounion comments ex-pressed by the team leaders here and we therefore find it unneces-sary to address the merits of Sheraton. More comparable are thosecases, also cited by the hearing officer, where the Board found thata supervisor’s conduct was not so inordinate as to lead the employ-ees to fear possible retribution from the supervisor should the em-ployees reject the union. Thus, in Sil-Base Co., supra, the Boardfound unobjectionable a supervisor’s expression of personal opinionin favor of the union, made in response to employee questions ad-dressed to him as the employer’s most senior employee. And in Cal-Western Transport, 283 NLRB 453 (1987), and Meridian Industries,supra, supervisors engaged in a variety of prounion conduct whichthe Board found to be nothing more than the expression of personalopinion unaccompanied by threats and promises, conduct whichcould not reasonably have coerced or lured employees into support-ing the union. Such is the conduct at issue here.

about the union campaign. Indeed, the testimony ofemployee Carol Graddy confirms this. In July, Graddyasked Team Leader McElroy’s opinion about unioniza-tion. Both Graddy and McElroy were unaware ofMcElroy’s status as a statutory supervisor at this time.McElroy’s statement that she believed two benefits ad-hered to unionization was a benign expression of opin-ion. Similarly, even though McElroy and Team LeaderEllis asked employee Caffiel how she intended to votein this period before team leader status was deter-mined, the resulting conversation among the three re-flected their discussion of a controversial issue. Theteam leaders offered their personal opinions that bene-fits were to be gained from unionization.

The continued occasional expression of these opin-ions by team leaders in the period after they wereidentified as statutory supervisors does not warrant acontrary conclusion. The evidence shows only thatMcElroy and Team Leader Patterson told employeesthat the benefits of having a union included better payand benefits and job protection. This expression of per-sonal opinion by the team leaders contains no hint ofreward by these supervisors for supporting the Unionor punishment for refusing to do so. Rather, the teamleaders made general statements pointing out the pos-sible benefits of union representation. These types ofcomments are not objectionable.9

Accordingly, unlike the hearing officer,10 we find nomerit to the Employer’s objection and we find that acertification of representative should be issued.

CERTIFICATION OF REPRESENTATIVE

IT IS CERTIFIED that a majority of the valid ballotshave been cast for Miscellaneous Warehousemen,Drivers and Helpers, Local 986, International Brother-hood of Teamsters, AFL–CIO and that it is the exclu-sive collective-bargaining representative of the employ-ees in the following appropriate unit:

Included: All full-time and regular part-time em-ployees employed by the Employer in the pa-tient services, nursing and radiology depart-ments, the administrative aide and the PBX op-erator at 2150 Waterman Avenue, SanBernardino, California.

Excluded: All other employees including ophthal-mology employees, professional employees,guards and supervisors as defined in the Act.