Cardinal Health 200, Inc.

National Labor Relations Board - Administrative Judge OpinionsAug 15, 2007

02-RC-023170 (N.L.R.B. Aug. 15, 2007)

JD(NY)–40–07 Montgomery, NY UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES NEW YORK BRANCH OFFICE CARDINAL HEALTH 200, INC. Employer and CASE NO. 2-RC-23170 THE HIGHWAY AND LOCAL MOTOR FREIGHT DRIVERS, LOCAL 707, INTERNATIONAL BROTHERHOOD OF TEAMSTERS Petitioner Curtis Mack, Esq. and Brennan W. Bolt, Esq., (McGuire Woods, LLP), Atlanta, Georgia for the Employer George A. Kirschenbaum, Esq., (Cary Kane, LLP), New York, New York for the Petitioner RECOMMENDED DECISION ON OBJECTIONS STATEMENT OF THE CASE STEVEN FISH, Administrative Law Judge. On December 14, 2006, The Highway and Local Motor Freight Drivers, Local 707, International Brotherhood of Teamsters, herein called the Union or Local 707, filed a petition seeking to represent certain employees employed by Cardinal Health 200, Inc., herein called the Employer or Cardinal, at its facility located in Montgomery, New York. On January 26, 20071 the Director for Region 2 issued a Decision and Direction of Election, ordering an election in a unit of drivers and transportation coordinators, employed at the Employer’s Montgomery, NY facility. The election was conducted on February 22 and 23. The tally of ballots, which was made available to the parties at the conclusion of the election showed the following results: Approximate number of eligible voters…………………………………………… 61 Void ballots…………………………………………………………………………….0 1 All dates herein referred are in 2007, unless otherwise indicated. JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 2 Votes cast for Petitioner…………………………………………………………… 48 Votes cast against participating labor organization……………………………...12 Valid votes counted………………………………………………………………… 60 Challenged ballots………………………… …………………………………….. 0 Valid votes counted plus challenged ballots………………………………………60 Challenges are not sufficient in number to affect the results of the election. A majority of the valid votes counted plus challenged ballots has been cast for Petitioner. On March 2, the Employer filed timely Objections to the conduct of the election. On April 27, the Director issued a Supplemental Decision and Notice of Hearing on Objections, in which she overruled Objections, 1 and 2 filed by the Employer, and found that Objections 3, 4 and 5 raised substantial and material factual issues which required a hearing. Thereafter, the Employer filed a timely request for review of the Director’s decision. On May 23, the Board issued an Order, denying the Employer’s request for review with respect to the dismissal of Objection 1, but concluding that the Director’s decision to dismiss Objection 2 should be reversed, and that this Objection should be remanded to the Director, to consolidate it for hearing with Objections 3, 4 and 5.2 On May 29, the Director issued a Supplemental Decision on Remand, complying with the Board’s Order, and adding Objection 2 to the hearing, already scheduled for May 30, on Objections 3, 4 and 5. The hearing was conducted before me on May 30, May 31 and June 21, in New York, NY. Briefs have been received and have been carefully considered. Based upon the entire record, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. THE OBJECTIONS Objections 2 through 5, which are the Objections included in the hearing, allege as follows: Objection No. 2. On February 22 and 23, 2007, the NLRB agent conducting the election committed acts that tended to destroy confidence in the Board’s election process, and/or engaged in conduct that could reasonably be interpreted as impugning the election standards maintained by the NLRB, by leaving the door to the voting area open during the entire election period thereby allowing others to observe who was and was not voting and by permitting employees to wear pro-union paraphernalia such as Union hats, pins, and shirts into the voting area during voting times. Objection No. 3 The Teamsters Local 707, through its authorized agents and others, interfered with employee rights by misrepresenting to employees that it could determine how employees voted in the secret ballot election. 2 The Board concluded that since the details of the allegations set for hearing were unclear in the papers before it, that these issues may be relevant to Objection 2, and it is “appropriate to remand Objection 2 for hearing with Objections 3, 4 and 5.” JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 3 Objection No. 4 During the period December 14, 2006 through February 23, 2007, the Teamsters Local 707, through its authorized agents and others, engaged in conduct that reasonably tended to interfere with employees’ free and uncoerced choice in the election by threats of reprisal if employees failed to vote for Teamster representation. Objection No. 5 Teamsters Local 707, through its agents and others, engaged in electioneering on February 22 and 23, 2007, thereby interfering with employees’ free and uncoerced choice in the election. II. FACTS A. OBJECTION NO. 2 The election was held in the conference room on the second floor of the Employer’s facility, directly above the drivers Transportation office. The conference room shared a hallway with a cafeteria/break room and the Employer’s Special Products Division. There were four voting periods, 12:00 a.m. to 6:00 a.m., and 12:00 noon to 1:00 p.m., on both February 22 and 23. Gerard Kratz, the Employer’s observer throughout the election, testified concerning procedure at the election, and his testimony, which was for the most part, not disputed is credited. Kratz and the observer for the Union were seated at a desk in the center of the conference room, about eight feet from the “voting booth”. The “voting booth” consisted of a cardboard box with three sides, but the cardboard concealed voters from their chests down. The conference room door was 10 feet to the left of the observers, and two National Labor Relations Board agents were at a separate table about 8-10 feet to the observers right. The conference room had only one door, and the door was left open during the election, on both days. On the days of the election, paper was put up on the windows and doors to the Transportation office, by officials of the Employer, so that individuals in the office could not see who was going upstairs to vote. The window to the door of the conference room where employees were voting, was also covered with paper. However, as noted the door to the conference room was left open for both days of the election. During the election, at least three dozen employees walked by the voting area, and from three to six employees each day, stopped and looked into the voting area, while employees were voting.3 Kratz heard some of the employees talking in the hallway, but he could not hear what was said and or did not recognize any of the voices. Kratz conceded that when employees looked into the voting room, that they could not see how employees were voting. During the course of the election, about a dozen employees including employees Ross Stevens and Fred Howell wore pro-union paraphernalia, such as Union hats and t-shirts when they voted in the election. There were no other employees in the election area, while the employees were wearing pro-Union paraphernalia, since only one voter was allowed into the 3 The record does not reflect whether the employees who stopped to look into the voting area, were drivers (eligible voters), or non eligible voters, such as Special Productions Division employees. JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 4 voting area at a time by the Board Agents.4 Neither Kratz, nor any witnesses furnished any testimony that there was any discussion of the election, the Union, or any other evidence of electioneering at or near the polls during the election. B. OBJECTIONS NOS. 3, 4 AND 5 Central to these Objections is the issue of Agency. The Employer contends that pro- union employees Fred Pratt and Hank Kully were agents of the Union, and that the conduct of these employees during the election campaign is attributable to the Union. In this regard, the record establishes that Local 707 has approximately 3000 members in New Jersey, Long Island, New York City, and upstate New York. The Union’s offices are located in Hempstead, New York, which is about 90 miles from the Employer’s facility, located in Montgomery, New York. The Union’s President and Principle Officer is Kevin McCaffrey. In the fall of 2006, Fred Pratt employed by the Employer is a driver, telephoned McCaffrey. Pratt informed McCaffrey that he was speaking on behalf of a group of drivers employed by Cardinal in Montgomery, New York, and that they had heard good things about the Local and were interested discussing organization with Union representatives. McCaffrey scheduled a meeting for November 20, 2006 and directed Pratt to notify other employees about the meeting. McCaffrey had a scheduling conflict for that day, so he sent John Ziropoli, Vice President of the Union, to conduct the meeting. Approximately 15-20 employees, including Pratt, attended the meeting. Ziropoli asked the employees to express their concerns as to why they were seeking Union representation and explained to them the process of union organization. He told them that the Union would need to obtain signed authorization cards, and then file a petition with the National Labor Relations Board. No authorization cards were distributed at that meeting. In early December of 2006, McCaffrey mailed authorization cards and a copy of a petition to be signed by employees, to one of the Union’s shop stewards at another facility in Maybrook, New York, who in turn gave these documents to Pratt. McCaffrey spoke to Pratt on the telephone about soliciting signatures on these documents. McCaffrey had previously been informed that some of the employees had expressed some concerns about retaliation from the Employer, if it found out about employees signing cards. McCaffrey informed Pratt that the employees are protected under the law, but that the Union needs to prove that the Employer knew that employees were union supporters. Therefore, the employees needed to sign the petition, and the Union would send the petition to the Employer, with a cover letter, stating that the signers were union supporters, and that it was unlawful to take any action against them for their union support. Pratt agreed to distribute the petitions and authorization cards to employees, and told McCaffrey that he would also utilize several other employees to assist him in this regard. McCaffrey informed Pratt to give the same instructions to other employees helping him in obtaining signatures on the petition. On December 11, 2006, McCaffrey met with about 50 drivers from Cardinal at the Maybrook firehouse. Pratt was among the employees present, and this was the first time that 4 While employee Fred Howell testified that Kratz wore a Vote “No” button during the election, I do not credit this testimony, since Kratz credibly denied this assertion, and is supported in this regard by the testimony of employee Haywood Davis. JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 5 McCaffrey met Pratt. Pratt introduced himself to McCaffrey and gave McCaffrey a number of signed authorization cards that he and other employees had obtained, as well as petitions signed by 14 employees, including Pratt, and Hank Kully.5 Pratt informed McCaffrey that the employees needed more petitions, and that more employees wanted to sign. McCaffrey passed around additional copies of the petition, and explained to the employees the reasons for the petition, as he had previously explained to Pratt. The petition was signed by 29 additional employees at the meeting. Several employees also signed authorization cards at the meeting. McCaffrey gave out his business card at the meeting and instructed the employees to call him directly, if they had questions about the campaign or the Union. He also told the employees to call him if they had any misgivings about signing the petition, and if they wanted their names deleted from the petition, McCaffrey would do so. At the close of the meeting, Pratt asked for and received from McCaffrey additional copies of the petition, to be signed by some employees who were not present. During this meeting, McCaffrey did not tell the employees anything specific about Pratt’s authority, and did not tell them that Pratt was authorized to speak for the Union. McCaffrey testified that he did not want to single out Pratt or anyone else as a “lead person” for the Union. Similarly, McCaffrey did not tell the employees at the meeting, or at any other time, that Pratt had no authority to speak on behalf of the Union. Subsequently, McCaffrey received from Pratt, additional petitions, containing signatures of 10 more employees, dated December 12 or 13, 2006. The Union as promised, on December 14, 2006 sent to the Employer copies of these petitions,6 signed by a total of 47 employees, with the statement that the drivers who signed were union supporters, and the “Union will not tolerate any behavior which discriminates against workers in any way because of their union sympathies or activities.” On the same day, the Union filed its petition with the National Labor Relations Board, along with the authorization cards that the Union had obtained. In that regard neither McCaffrey or any other union representative solicited any cards at the Employer’s facility. All of the cards were solicited by Pratt and some other employees designated by Pratt, at the facility, as well as at the December 11, 2006 meeting. On January 5, 9 and 10 the Representation Hearing was held before the Board to determine the appropriate unit. Pratt attended the entire hearing with the Union. No other bargaining unit employee attended the hearing. The Union reimbursed Pratt for his wages and travel costs in order for him to attend the hearing. On February 8, 2007, McCaffrey again met with the drivers in Newburgh, New York at a Quality Inn. All of the authorization had been signed by that time. At this meeting, McCaffrey made reference to Pratt’s role in the campaign, and again did not tell employees that Pratt had no authority to speak or act on behalf of the Union. The final meeting held by the Union, took place on February 20, and was conducted by Ziropoli, based on a script drafted by McCaffrey. Ziropoli reminded the employees present of 5 These signatures were dated December 7, 2006. 6 The petitions read: “We the undersigned employees of Cardinal Health recognize and support Teamsters Local 707 in its campaign to unionize the drivers at 500 Neelytown Road, Montgomery, New York.” JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 6 the dates of the election, urged them to stay strong and vote for the Union. Ziropoli also commented concerning a problem with typos in the election notices, and the Employer’s efforts to delay the election as a result. He stated that the Union did not believe that the delay tactics will be successful.7 Pratt was used by the Union to notify the employees about when and where these meetings were to be held. Pratt established a website entitled NEDL Drivers Union vote. Pratt did this on his own, without consulting the Union. Pratt did inform McCaffrey that he had set up the website, so that the employees could know what’s going on, could talk to each other, post their concerns, and exchange information. McCaffrey agreed that it was a good idea, and in fact used the website to post two messages from the Union on February 1. McCaffrey sent the messages to Pratt, who posted them on the Website under the name “Cardinal Driver”, which was Pratt’s user ID. The website was also used by employees during the campaign. Robin Lauer, who was not a supporter of the Union, posted a reply on the website to a driver who had said in a previous posting, that anyone who doesn’t support the Union, “had a sweetheart deal with the company”. Lauer objected to that assertion, and replied that he didn’t support the Union, and did not have a sweetheart deal with the company. During the course of the campaign, the Union mailed two communications to employees of Cardinal signed by McCaffrey on February 15 and 16. McCaffrey spoke with several employees on the phone during the course of the election campaign, but Pratt was the most prominent and frequent. Pratt and McCaffrey spoke at least twice a week during the campaign, and they spoke every day, during the last week, prior to the election. Pratt and McCaffrey reviewed together an employee list to assess the support for the Union, which McCaffrey did not do with any other employee. The election, as noted, took place on February 22 and 23. The observers for the Union were Albert Higgins and Anthony Muro, who were paid by the Union for their time and lost wages, and time spent in that capacity. The Employer also contends that employee Henry (Hank) Kully is and was an agent of the Union. However, other than evidence that Kully was a supporter of the Union, the Employer introduced no evidence of any activities engaged in by Kully on behalf of the Union. While Kully was one of the 47 employees who signed the Petition circulated by the Union and presented to the Employer, no evidence was adduced that Kully either solicited signature for the petition, or that he solicited any authorization cards on behalf of the Union. The conduct alleged by the Employer to be objectionable, related primarily to statements made by Pratt and Kully to various employees. They all relate to the issue of “super seniority”. In that regard, the record establishes that the Employer has a seniority system in the transportation department, which affects drivers ability to pick runs, bid for jobs, vacations, overtime and parking spots. The Employer also employs three individuals as switchers, who do not go out on the road, and spend their time in the yard, moving trailers in and out of shipping and receiving doors, maintaining the yard and monitoring trucks in and out of repairs. The switcher position is considered by many drivers to be a desirable job, and like other positions, it is filled by a bidding system based on seniority. 7 The Employer filed an Objection concerning these errors and the method used by the Region to correct same. The Director dismissed that Objection, and the Board affirmed that dismissal. Thus that issue is not before me. JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 7 During the first meeting of employees conducted by McCaffrey, attended by 50 employees, one of the employees asked a question about super seniority for shop stewards. McCaffrey replied, “First of all that is something that would have to be negotiated with the Employer in the contract”. McCaffrey added that before the Union proposes anything, he would come to employees and ask what they wanted in the contract. McCaffrey then explained that his opinion is that at least for layoff and recall there should be super seniority for shop stewards. As for super seniority for job selection, McCaffrey opined that this would be demanded only if the steward could prove that he is needed on a shift because the majority of the work is there, or he needs the interaction with the employees to handle grievances. McCaffrey concluded the discussion on this subject, by telling the employees that the “one thing I would insist upon in the contract is that the shop steward would have super seniority for layoff and recall. And if we think it’s important that he be able to pick his shift in terms of being able to do his job as a shop steward, then that’s something that we would look at as well”. There is no evidence that this subject came up during any of the other Union meetings with employees, and it was not mentioned in any of the Union’s written communications to employees. During the course of the campaign the Employer distributed to employees a number of documents and presented to them “power points” at meetings. One of these items referred to the issue of super seniority. The document is entitled “NOT ONLY DOES LOCAL 707 APPOINT STEWARDS – IT GIVES THEM SUPER SENIORITY”. The document then sets forth copies of two clauses allegedly in Local 707’s contracts with Teacher’s College and Waldbaum’s, which provides for super seniority for shop stewards for any or all purposes, including layoff, rehire, bidding and job performance. Another document incorporates a National Labor Relations Board charge filed in 2002 against Local 707 by a member, alleging that a super seniority clause agreed to by Local 707 was unlawful. This document includes the following comment: “STEWARD SUPER SENIORITY AGREEMENT WITH EMPLOYER ILLEGAL? THIS LOCAL 707 MEMBER THINKS SO”. Fred Howell is employed by the Employer as a Transportation Coordinator, which is in the unit. During the campaign, Howell heard various employees discussing the issue of super seniority for shop stewards. Several employees approached Howell, who was a known supporter of the Union,8 and had previously worked at companies represented by Unions. These employees expressed concerns to Howell about losing their jobs and asked Howell if it was true that they could lose their jobs or their runs because of super seniority. Howell said “No, but if a job is up for bid, it would depend on where you fall on the seniority list”, so the employee could lose their run to somebody senior whether or not there was super seniority. The employees asked Howell how super seniority worked at Red Star or Yellow Freight, (Union companies where Howell had worked). Howell told them that a shop steward is the last person to get laid off, and the shop steward bids first for jobs and vacations. Howell also informed each of the employees with whom he discussed this issue, that super seniority is something that has to be negotiated in the contract between the Employer and the Union. The Employer presented several witnesses, who provided primarily hearsay testimony, concerning alleged statements made by Kully and Pratt towards various employees. Gregory Scott, is employed by Cardinal as a Senior Labor Relations Advisor. He testified that one morning in the Transportation office, he overheard a comment made by Pratt to employee Steven Alenofsky.9 8 He wore a Union shirt and button at work. 9 The record reflects that the name of this employee is as stated above. In its brief the Employer referred to the employee as Steve Iwonowski. I assume that the transcript did not Continued JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 8 According to Scott, at the time Iwonowski was turning in his vacation request, Pratt approached Iwonowski and said, “Go ahead. Turn it in. It’s not going to matter. When I get super seniority I’m going to bump you from your vacation”. I credit Scott’s testimony which was not denied by Pratt,10 and I find that the statement was made as described by Scott. Significantly however, I note that Scott did not testify as to the date of this conversation, and more importantly did not testify whether it took place before or after the election. Kratz is employed by Cardinal as a switcher. Kratz is number five on the Employer’s seniority list and is more senior than driver, Hank Kully. About a week to 10 days prior to the election, Kratz was in the parking lot talking with four employees about the election and the Union. These employees included Kully and Butch Morgan. During this conversation, Kully and one of the other of the employees present stated that they thought that the Union had the support of a majority of employees and was going to win the election. Kully then added that when the Union wins the election, he (Kully) was going to become shop steward, and “I’m taking your job”. Kratz laughed and walked away. Kratz testified that he “nixed off” the comment at the time. However Kratz was concerned enough to tell supervisor Ken Troy and Marybeth Affeldt what Kully had said to him. The supervisors made no comment to him, about what Kully had said to him. A few days later, Kratz discussed Kully’s remarks with several employees including Butch Morgan, Robin Laner and Chris Ganyon. During Kratz’s conversation with Morgan about Kully’s remark, Morgan explained to Kratz how super seniority works. Morgan informed Kratz, that if the Union wins the election, the employees voted and elect a shop steward. Once the shop steward is elected, the steward has super seniority and can “take any job he wants”. Kratz testified that he believed that there was a good possibility that Kully might become shop steward, since he was one of the “spearheads” of the Union drive. That is Kully was one of five or six employees including Pratt, Fred Howell, Ross Stevens, Joe Ciccone and Ken Pfieffer, who were the employees who were the most active in encouraging employees to vote for or support the Union. Evidence was presented that Kully’s remark to Kratz was disseminated. Employee Haywood Davis was told by Kratz, that Kully had said to Kratz that when the Union gets in, he (Kully) was going to become shop steward, and was going to take Kratz’s switcher job. Driver Robin Lauer prior to the election heard “through the grapevine”, that Kully had said to Kratz that if Kully became shop steward, he would be the switcher in the yard. According to Lauer, there was a lot of talk in the yard about this remark, but he could not recall who told him about it. Lauer added that it was “common knowledge by the time it got to me”. Lauer also recalled that he told some employees about Kully’s comment, but he did not recall who or when he spoke to about it. Furthermore, Martin Sibilia the Employer’s Distribution Supervisor recalls a conversation with Robin Lauer on the day of the election at about 12 noon. Lauer said to Sibilia, in the presence of another supervisor Rob Iazelli, “Did you hear what Hank Kully said to Jerry Kratz?” Sibilia said “No, I don’t know” Lauer replied that Kully had said to Kratz “When the Union gets in, I’ll have super seniority and I’ll be the shop steward, and I’ll have your job.” _________________________ spell the name correctly, and that the Employer’s brief contains the correct spelling of the name. I hereby correct the transcript to reflect the name of the employee as Iwonowski. 10 Pratt did not testify. JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 9 The Employer introduced other evidence, again primarily hearsay, concerning alleged statements made to and conduct towards employees Walter Cruz, Johnny Aguilar and Pedro Trinidad. Scott testified to several conversations with Cruz, during the pre-election campaign in the Transportation office. Cruz told Scott that he was feeling a lot of pressure from senior drivers concerning the election. Cruz also expressed concerns that employees might find out how he voted. Scott replied to Cruz that it is “a secret ballot election, and that no one knows how you vote unless you tell them. It’s your right to vote either way”. According to Scott, Cruz appeared to be “relieved” when Scott informed him that no one can find out how he voted. Scott had two other similar conversations with Cruz, wherein in each case, Scott assured Cruz that nobody would know how he voted. Cruz did not tell Scott which “senior drivers” were “pressuring” him, nor what specific statements these drivers made to him about the election. Scott had another conversation with Cruz on the shipping docks. Again, Cruz told Scott that he was feeling “pressured”, and added that he wasn’t the only one that is being pressured. Cruz told Scott that fellow drivers, Aguilera and Trinidad were also being “pressured”. Scott replied to Cruz, “Listen to the facts that is being presented. Make a decision that’s best for you and your family. It’s a secret ballot election. Don’t let anyone else make a decision for you. It’s your decision”. Scott spoke to Aguilar during a ride along an early February. They talked about the election, and Aguilar told Scott that he appreciated the information that he was being given and that he understood that it was a big decision. Aguilar added that he was being pressured, and expressed some concerns about how the election would take place. Scott informed Aguilar as he had Cruz, that it was a secret ballot election, and “nobody is going to know how you vote, unless you tell them”. Scott had several other conversations with Aguilar during the campaign, wherein Aguilar would again tell Scott that he was still feeling “pressure”. On one occasion, Scott saw Aguilar talking with a couple of drivers, including Pratt, in the back of Aguilar’s trailer. When Scott stepped into the trailer, the other drivers left. According to Scott, Aguilar appeared “relieved” when the other drivers left, and told Scott that the drivers were talking to him about the election, and he was felling pressured. On the same day of his ride-along with Aguilar, they stopped for lunch, and were joined by Trinidad. The three of them discussed the upcoming election, and Scott made sure that they know when it would take place. Trinidad also told Scott that he was feeling pressured by some of the other drivers. Shortly thereafter, Scott observed Trinidad speaking with a couple of drivers, including Pratt, in Trinidad’s trailer. When Scott stepped into the trailer, the other drivers walked off. Trinidad told Scott that the employees were talking about the election, and that he (Trinidad) didn’t want to be seen talking to Scott anymore. Jerry Kratz testified that sometime after the election, he was told by an employee, who he did not recall, that prior to the election, some drivers had “harassed” and “intimidated”, Cruz and Trinidad. In late January, Sibilia saw Cruz on the shipping dock, and testified that Cruz was teary eyed and visibly upset. Sibilia asked “How is it going”? Cruz replied “You don’t know, I don’t know what to do. You don’t know the pressure that I’m under”. Sibilia asked “pressure about what?” Cruz responded that he didn’t know how he wanted to vote in the election, and that “senior drivers” were pressuring him. Cruz also informed Sibilia that Aguilar and Trinidad felt JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 10 the same way, and had also been pressured by senior drivers. Cruz also told Sibilia that he had signed a card for the Union, and that senior drivers were saying that since he signed the card, the company would know that he signed, and if the Union didn’t get in, Cruz would most likely lose his job, based on the fact that he signed the card. Sibilia replied to Cruz that this was not true, and that he did not need to feel upset or nervous and the “company would not do that to you.” A weak later, Sibilia saw Cruz again, in front of the Transportation office. Sibilia asked if Cruz was doing any better. Cruz answered, “I’m still nervous. I don’t know what to do.” At that moment, Kully appeared and asked, “Hey guys, what’s going on”? Sibilia testified that Cruz looked “stone faced” and changed the subject of the discussion. Neither Cruz, Aguilar nor Trinidad was called as witnesses by the Employer, although Trinidad and Aguilar were still employed by Cardinal at the time of the trial. Cruz was subpoenaed by the Employer, but he did not appear at the trial, which opened on May 30. The Employer submitted an affidavit from Renee McComb, its Human Resources consultant. The affidavit reflects that on May 22, Walter Cruz telephoned her to talk about a subpoena that he had received to testify in the above case. Cruz allegedly told McComb that he had spoken with someone at the National Labor Relations Board about whether he had to attend the hearing because he was moving out of state. Cruz told McComb that the National Labor Relations Board instructed him to write a letter to Cardinal Stating why he could not appear and that he would need to reschedule his appearance. Cruz also stated that he had written a letter to Cardinal and would bring it to McComb the next day. On Wednesday, Cruz gave McComb a letter, stating that he would not be able to appear on May 30, since he is moving out of state. The letter also reflects that he would try to contact Cardinal as soon as he is relocated, and will let Cardinal know when he can schedule a date to appear. McComb was not called as a witness by the Employer, so the record does not reflect what if anything McComb said to Cruz, or whether she made any effort to persuade Cruz to comply with the subpoena, or whether she asked him for a forwarding address or phone number. The Employer at the opening of the trial, requested an adjournment, due to Cruz’s non appearance. I denied the request, but stated I would consider it again after hearing the witnesses that the Employer was able to present. On May 31, after calling several witnesses, the Employer renewed its request for a postponement, in order to find and call Cruz as a witness. I granted a postponement, over the objection of the Union, to June 21. On that date, Cruz did not appear, and the Employer stated that it had been unable to locate Cruz, and that Cruz had not contacted the employer as he had promised to do. The Employer called Kent Howell, Transportation Supervisor for Cardinal, to testify concerning the Employer’s efforts to locate Cruz. He testified that he contacted Cardinal’s Human Resources Department to see if they had a forwarding address for Cruz, and they did not. He called the Post Office, and was allegedly told that the Post Office had no forwarding address for Cruz, but the employer should send something to Cruz’s old address, and it would be forwarded, should the Post Office receive a forwarding address from Cruz. Howell did not testify that he made an attempt to send a letter to Cruz’s old address, as suggested by the Post Office. Howell also went on the internet, and found two Walter Cruz’s listed in the Orlando11 area. He called both numbers. One number just rang and no one 11 Howell was informed that Cruz intended to relocate to the Orlando area. JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 11 answered. The other number had an answering machine. The voice was a woman’s voice, but did not have a Spanish accent. Howell did not leave a message, because he believed that Cruz and his wife had Spanish accents.12 Howell also admitted that he never called Cruz’s old phone number, to see if there was a forwarding phone number, because “he told me before he left that his house was sold and he was moving immediately that day.” Before Cruz left, he informed Howell to give his check to employee Aguilar, which the Employer did. Howell asked Aguilar where Cruz was, and Aguilar said that he did not know. According to Howell, Aguilar told him that Cruz’s cousin had come to Aguilar’s house and picked up the check. Howell claims that he asked Aguilar if there was any way that Howell could get a hold of the cousin, and Aguilar allegedly said “No”, and that he (Aguilar) was not going to see the cousin again. Howell did not ask Aguilar for the cousin’s name. As noted above, Aguilar was not called a witness by the Employer. The Employer made another request to adjourn the hearing for another 30 days to locate Cruz and arrange for him to testify. I denied the request in agreement with Petitioner, that the Employer had sufficient time to find Cruz, and had not made adequate efforts to do so. I reaffirm that ruling. The Employer was aware that Cruz was intending to move to Florida and would not appear at the trial, by virtue of Cruz’s conversations with McComb. Yet McComb apparently made no efforts to convince Cruz to testify and comply with the subpoena, and more importantly did not ask Cruz for a forwarding address or a phone number or perhaps a cell phone number.13 Further when Howell telephoned a Walter Cruz that he found on the Internet in Orlando, he failed to even leave a message on the answering machine. He also did not send a letter to Cruz’s old address as suggested by the Post Office, or call Cruz’s phone number to see if there was a forwarding number. Most importantly, Howell knew that Cruz’s cousin had picked up Cruz’s check from employee Aguilar, but inexplicably failed to even ask Aguilar the name of Cruz’s cousin. In view of the Employer’s failure to diligently attempt to locate Cruz, the fact that his alleged testimony would essentially be cumulative in any event, and the fact that even with another adjournment, there was no assurance that the Employer would be successful in locating Cruz, I affirm my ruling that the Employer’s request should be denied. The Employer also adduced other evidence of alleged “threats and harassment”, from employee Lauer. Lauer testified that one of his friends and fellow employee told him that if he did not vote for the Union; the Union would find out, and he’d have to pay an initiation fee, when other people would not have to. Lauer also testified that the individual who told him this was a friend of his,14 and the comment might have been in jest. Lauer also testified that he believes that he was “harassed”, during the campaign, by some people putting trash (anti-union literature) in his mailbox, and someone put a vote Union sticker on his truck. Lauer also testified that he was banned from the NDEC Website, after posting a message that he did not support the Union, and objecting to the accusation made by another driver, that anyone who did not support the Union, had a “sweetheart” deal with the 12 Howell admitted that he had never met Cruz’s wife. 13 I note that McComb did not testify. I therefore draw an adverse inference against the Employer, as to these issues. 14 Lauer refused to disclose the name of the “friend” who said this to him. JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 12 company. The Employer also presented evidence concerning an alleged anonymous call made to Marybeth Affeldt the Employer’s Transportation Manager at the time of the election. Kratz testified that Affeldt, prior to the election told him that she had received a “prank” call, which included “foul language” toward Affeldt and her daughter. Affeldt informed Kratz that she had called the police, who were allegedly monitoring her house and her phone. Kratz further testified that he discussed this “prank” call with several other drivers, including Davis, Lauer, Morgan, Chris Ganyon, and an unnamed union supporter. Kratz said to this employee that he did not think that any of our guys were capable of that, but “now I seem to think that there might have been a couple of guys that could have made that prank call”. The driver replied that he did not think they would resort to that. Kratz replied “Well, it happened. There’s a police report on it, so it had to happen from somebody in all relation to this voting”. Kenneth Troy, the Employer’s day time Transportation Coordinator testified that prior to the election, his direct supervisor Ken Howell told him that there had been a “threatening” phone call made to Affeldt. He also recalled that the Employer sent out a memo about the incident. The record reflects that the Employer distributed a memo dated February 1, entitled “HARRASSMENT POLICY”. The new memo mentions that “last night, a member of our Transportation Management received a threatening phone call at home, which referenced our communication meetings”. The memo goes on to remind employees that the Employer has a “Harassment policy” which does not tolerate “any threatening communications or conduct”. Neither the memo, nor the testimony of the two employees revealed the specific contents of the alleged threat the Affeldt. Affeldt did not testify. This is no record of evidence as to what specific comments the caller made to Affeldt. Finally, as noted Petitioner introduced into the record a number of documents, which consisted of campaign materials distributed to employees by the Employer. In addition to the references to super-seniority, discussed above, these documents made numerous references to the fact that the election is by secret ballot that no one will know how employees vote, and that employees can vote “No” even if they signed a card or the petition. Other documents added that observers will be present at the election, to check voters names off the voting eligibility list, and “observers do not see how you vote”. Other materials emphasize the collective bargaining process, including statements that everything is subject to negotiation, the company can say no to the Union demands, bargaining is a game of “give and take”, and “there are no guarantees in bargaining”. Further in a letter dated February 21, the Employer stated that “a number of drivers have expressed a concern that anyone who signed the petition or supported the Union will be fired and retaliated against. …Nothing could be further from the truth. Cardinal Health will not treat any employee differently whether they supported the Union or not. To do so would violate our standard of business conduct and our core of ethics”. III. ANALYSIS A. OBJECTION NO. 2 The Employer argues that “it is the province of the Board to safeguard its elections from conduct that inhibits the free choice of voters, and the Board is especially zealous in preventing intrusions upon the actual conduct of its elections”. Clausson Baking Co., 134 NLRB 111, 112 (1961). It further asserts that in carrying out this duty, the Board must be, “extremely zealous in preventing conduct which intrudes upon the actual conduct of its elections”. Brinks Inc., 331 NLRB 46 (2000). JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 13 The Employer contends that by leaving the door to the voting area open and by permitting employees to wear pro-union paraphernalia into the polling area, the NLRB agent did not protect the laboratory conditions necessary to have a free and fair election. Hollingsworth Management Servs., 342 NLRB 556 (2004) (Election set aside where voting was open, and pro- union employees wearing T-shirts and buttons, were electioneering in the line to vote). I disagree. The appropriate standard for evaluating the Employer’s contentions, is whether the actions of the Board Agent, i.e., allowing the door to remain open and allowing employees to wear pro-union paraphernalia in the polling area, created a reasonable doubt as to the fairness and validity of the election. Avante at Boca Raton, 323 NLRB 555, 558 (1997); Rheem Mfg. Co., 309 NLRB 459, 460 (1992); Polymers Inc., 174 NLRB 282, (1969) enfd.414 F. 2d 999 (2d Cir. 1969), cert. denied 396 U.S. 1010 (1970). I conclude that the Employer has not shown that the conduct alleged, created any doubt as to the fairness and validity of the election. It is well settled that wearing stickers, buttons and similar campaign insignia by participants as well as observers at an election, is not objectionable. Fiber Industries, 267 NLRB 840, 850 (1983); Vegas Village Shopping Center, 229 NLRB 279, 291 (1977); Lakewood Farms, 178 NLRB 226 (1969); Furniture City Upholstery, 115 NLRB 1433, 1434-1435 (1956). It is noteworthy that here, Petitioner’s observers did not wear any union paraphernalia, but some pro-union supporters did, when they came into vote. Since the above precedent makes clear, that it is not objectionable for an observer of the Union to wear pro-union paraphernalia during the election, Lakewood Farms, supra, it is clearly not objectionable for pro- union employees to do so, where they voted, as here, without any other voters being present. With respect to the fact that the Board Agent allowed the door to the polling place to remain open, which resulted in some individuals looking in an observing employees voting, I find this conduct not to be objectionable. While it is true, as the Employer argues, the evidence discloses that some individuals15 stopped and looked into the polling area while employees were voting, there is no evidence that these individuals could see how the employees voted.16 Nor is there any evidence that any voters saw these individuals looking into the voting area, as they were voting. In these circumstances, I find the conduct complained of not to have created a reasonable doubt as to the fairness and validity of the election, Polymers, supra; Avante at Boca Raton, supra, and does not warrant the election being set aside. Pacific Grain Products, 309 NLRB 690 (1992), (Presence of non voters in polling area not objectionable); McDonald Land & Mining Co., 301 NLRB 463, 470 (1991) (Gap of 10 inches in voting booth, not objectionable, since it was unlikely that gap affected how anyone voted); Brayburn Nursing Home, 290 NLRB 268 (1988) (Failure to supply a voting booth, not objectionable since no evidence that secrecy of ballot violated); Sewell Plastics, 241 NLRB 887 (1959) (Election not set aside, even where two observers testified that they could see how a substantial number of ballots were marked, since voters were unaware that observers could see how ballots were marked). 15 According to Kratz’s credited testimony, from three to six employees each day stopped, and looked into the voting area, while employees were voting. 16 Kratz conceded that the individuals could not see how the employees voted. JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 14 The cases cited by the Employer, 17 are clearly inapposite, since the basis for each decision is evidence of electioneering by various individuals at the polls. While it is true, as the Employer points out, that in Hollingsworth Management, supra, the door to the polls was left opened, this fact was not the basis for the decision. In fact, the Board in its analysis, reversing the Hearing officer’s dismissal of this objection, made no reference to the door being opened, or to the possibility of anyone observing employees voting. Rather, it emphasized the extensive electioneering conducted by the individuals at the polling place, including physical manhandling of voters. Accordingly based on the above analysis and authorities, I recommend that Objection No. 2 be dismissed.18 B. OBJECTIONS 3, 4, AND 5 The appropriate standard for evaluating objectionable conduct by a party is set forth in Taylor Wharton Harsco Corp., 336 NLRB 157, 158 (2001). As the hearing Officer found, the proper test for evaluating conduct of a party is an objective one-whether it has “the tendency to interfere with the employees’ freedom of choice.” Cambridge Tool Mfg., 316 NLRB 716 (1995). In determining whether a party’s misconduct has the tendency to interfere with employees’ freedom of choice, the Board considers: (1) the number of incidents; (2) the severity of the incidents and whether they were likely to cause fear among the employees in the bargaining unit; (3) the number of employees in the bargaining unit subjected to the misconduct; (4) the proximity of the misconduct to the election; (5) the degree to which the misconduct persists in the minds of the bargaining unit employees; (6) the extent of dissemination of the misconduct among the bargaining unit employees; (7) the effect, if any, of misconduct by the opposing party to cancel out the effects of the original misconduct; (8) the closeness of the final vote; and (9) the degree to which the misconduct can be attributed to the party. See, e.g. Avis Rent-a-Car, 280 NLRB 580, 581 (1986). If the conduct complained of was not committed by union agents, such conduct must be assessed under the Board’s standard for third-party conduct. The Board in Lamar Advertising of Jonesville, 340 NLRB 979, 980 (2003), discussed this standard and the rationale behind its use. In Westwood Horizons Hotel, supra, the Board set forth the following factors to be considered in assessing the seriousness of a third-party threat: (1) the nature of the threat itself; (2) whether the threat encompassed the entire bargaining unit: (3) whether reports of the threat were disseminated widely within the unit; (4) whether the person making the threat was capable of carrying in out, and 17 Clausson Baking, supra; Brinks, supra; and Hollingsworth Management, supra. 18 I also rely on the fact that the Union won the election by a margin of 48 -12. Thus even if 12 employees (the maximum number of employees whose voting was observed) could be presumed to have seen the individuals looking at them when they voted, this number would be insufficient to affect the results of the election. M.B. Consultants, Ltd., 328 NLRB 1089 (1999) (In view of six vote margin, alleged unlawful statements made to two employees could not have affected the election); NLRB v. Lovejoy Industries, 904 F.2d 397, 402 (7th Cir. 1990) (Board entitled to consider lopsided election in concluding that election should not be set aside). JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 15 whether it is likely that the employees acted in fear of his capability of carrying out the threat; (5) whether the threat was rejuvenated at or near the time of the election. The first issue to be considered in assessing the alleged objectionable conduct in the Employer’s Objections 3 through 5 is which standard to apply. That question is determined by whether or not pro-union employees Pratt and Kully should be deemed agents of the Union. In that regard, the Employer relies on Bristol Textile Co., 277 NLRB 1637 (1986); Bio- Medical Applications, 269 NLRB 827, 828 (1984), and NLRB v. Kentucky-Tennessee Co., 295 F.3d 436 (4th Cir. 2002). It argues that Pratt was, like the employees in Bristol Textile and Kentucky-Tennessee, supra, the Union’s only link and conduit of information to the employees, because Pratt made the initial contact with the Union about organizing, the Union put Pratt in charge of soliciting authorization cards and signatures on the petition, and although Pratt used other employees to assist him in these tasks, the Union did not know who Pratt had selected to help him. The Employer also relies on the fact that Pratt was the Union’s primary contact amongst employees, he notified employees about Union meetings, and was the only employee used by the Union to disseminate information to employees, and was the only employee to attend the representation hearing on the Union’s behalf and was paid by the Union for his attendance at the hearing. Further, Pratt was the only employee with whom McCaffrey reviewed the entire list of employees to gauge support for the Union, and was observed by employees at Union meetings interacting with McCaffrey with respect to the petitions signed by employees. I agree with the Employer that the above facts and authorities are sufficient to establish that Pratt was an agent of the Union during the election campaign.19 I have reviewed Corner Furniture Discount Center, 334 NLRB 1122, 1123 (2003), cited by the Petitioner, as well as other cases,20 standing for the proposition that even if an employee is the most active and vocal union supporter, and solicited most of the cards, he is not necessarily an agent of the Union. However, here as detailed above, Pratt was more than the most active union supporter and solicitor of cards and petitions. He was the Union’s primary contact at the facility, he was the only employee who was used by the Union to notify employees of union meetings, he discussed with and asked McCaffrey for more petitions in the presence of employees at Union meetings, and neither McCaffrey nor any Union official made any appearances at the Employer’s facility to solicit cards or talk to employees. Further, Pratt was the sole employee to attend the representation hearing on behalf of the Union, for which he was paid, and was the sole employee to discuss with McCaffrey how Pratt believed employees were going to vote. In these circumstances, I find that Pratt served as the Union’s “conduit” to the unit employees, who perceived him as the Union’s agent. Bristol Textile, supra. 19 I do not rely on the facts that Pratt created a website during the campaign for discussion of the election, and posted messages on such website on behalf of McCaffrey and the Union. The website was set up by Pratt on his own, without Union authorization or assistance. It was used by both pro and anti-union employees during the campaign. Most importantly, there is no evidence that any employee was aware that Pratt had set up the website. 20 Cornell Forge Co., 339 NLRB 733, 734 (2003); Advance Products Corp., 304 NLRB 436 (1991); United Builders Supply Co., 287 NLRB 1364 (1988) JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 16 While I agree with the Employer that the evidence establishes that Pratt was an agent, I do not agree with its further assertion that Kully should also be found to be an agent of the Union, because Kully’s conduct was a “continuation of the Union’s scare tactic initiated and promulgated by Pratt”, or the union ratified condoned Kully’s threat with Pratt’s threat to Iwonowski. Bristol Textile, supra, at 1637. While there is some similarity to Pratt’s remarks to Iwonowski, and Kully comments to Kratz, that fact alone is insufficient to conclude that the Union is responsible for Kully’s statements. Significantly, Pratt was not present when Kully made his remarks to Kratz, so it cannot be found, as in Bristol Textile, supra, that Pratt’s failure to disavow Kully’s statement, made him and the Union responsible for Kully’s conduct. There is no record evidence that Pratt became aware of Kully’s conduct, so it cannot be found that Pratt was obligated to disavow Kully’s comments, in order to avoid a finding of Union responsibility. That leaves Pratt’s conduct for evaluation. The only evidence of alleged misconduct by Pratt was Scott’s credited testimony that he overheard Pratt tell employee Iwonowski that when he (Pratt) gets super seniority, “I’m going to bump you from your vacation”. Even if this remark is deemed to be coercive or threatening, as alleged by the Employer,21 under the principles of Cambridge Tool, supra, it cannot be found to have had “a tendency to interfere with the employees’ freedom of choice”. This was a single incident, involving but one employee, with no evidence that the remark was disseminated to any other employee. Further the election results were not close, with the Union winning the election by 48-12. Hollingsworth Management, supra at 556; Sir Francis Drake Hotel, 330 NLRB 638 (2000); M.B. Consultants, 328 NLRB 1089 (1999); Kokomo Tube, 280 NLRB 357, 358 (1986). The Employer also adduced testimony from Scott that employees Cruz, Trinidad and Aguilar told him that they were “pressured” by “senior drivers” concerning the election. On one occasion, Scott saw Aguilar talking with a couple of drivers, including Pratt in the back of Aguilar’s trailer. When Scott stepped into the trailer, the other drivers left. According to Scott, Aguilar appeared “relieved” when the other drivers left. Aguilar again told Scott that the drivers (including Pratt) were talking to him about the election. I find this testimony to be probative of nothing. It proves only that Pratt spoke to Aguilar about the election and that Aguilar felt “pressured” as a result. However an employee can feel “pressure”, by the mere fact that other employees attempt to convince them to vote for or against the Union. Scott’s testimony provides no evidence that the “pressure” was caused by any unlawful statements.22 Accordingly, I conclude that the Employer has not established that Pratt engaged in misconduct that has a tendency to interfere with employees’ freedom of choice. While I have found, as set forth above, that the Employer has not established the agency status of Kully, I conclude that even if I were to agree with the Employer, that Kully was a union agent, his conduct would not be found to be objectionable. The record discloses that Kully in the presence of two other employees, told employee Kratz that when the Union wins the election, he (Kully) was going to become shop steward, and 21 For reasons described more fully below, I do not find this remark or similar comments made by Kully to be coercive, threatening or objectionable. 22 I note that Aguilar, although still employed by the Employer, was not called as a witness to explain what statements of Pratt caused him to feel “pressure”. JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 17 “I’m taking your job”.23 The evidence discloses that this comment was disseminated to approximately five other employees in the unit. (Morgan, Lauer, Ganyon, Davis and one unnamed employee who was present when Kully made the comment to Kratz).24 As was the case with Pratt’s similar remark to Iwonowski, even apart from my conclusion detailed below, that these comments were neither coercive nor threatening, I find that since the statement received minimal dissemination, in an election that was decided by 36 votes, that the conduct of Kully by itself, or combined with the conduct of Pratt, would still not have a tendency to interfere with employees’ freedom of choice, and the election should not be set aside.25 Bonanza Aluminum, 300 NLRB 584 (1990). Turning to the statements themselves, I am of the opinion, for several reasons detailed below, that in the circumstances of this case, they were not coercive, threatening or objectionable. I note initially, that the Board has long held that threats of job loss or discharge made by representatives of a union are non-coercive, since employees could reasonably evaluate such comments as being beyond the Union’s control, and at most a prediction of action to be taken by the employer. Hollingsworth Management, supra at 556; Bonanza Aluminum, supra, at 584 and at 591; Pacific Grain Products, 309 NLRB 690, 691 (1992); Janler Plastic Mold Co.,186 NLRB 540 (1970); Duralam Inc., 284 NLRB 1419 fn.2 (1987). Here, I conclude, similar to the above precedent, that employees could readily evaluate that the Union had no power to carry out the alleged threats by Pratt and Kully to supersede Iwonowski’s vacation choices, or to “take” Kratz’s job. In this regard, at the Union’s second meeting with employees, attended by 50 employees, McCaffrey was asked a question about super seniority for shop stewards. He replied that “this is something that would have to be negotiated with the Employer in the contract”. This comment by McCaffrey, made to nearly the entire unit, (50 out of 60 employees), made clear to employees that super seniority for shop stewards was not automatic, should the Union win the election, but would have to be negotiated with the Employer. This statement by McCaffrey was reinforced by pro-union employee Fred Howell who spoke to several employees about the issue, since Howell had previous experience at union shops. Howell explained to several employees that although they could lose jobs or vacation due to super seniority of shop stewards, that the super seniority has to be negotiated in the contract between the Employer and the Union. Further, the Employer itself reinforced this message, by pointing out in several of its communications to employees, that all issues must be negotiated and agreed to during negotiations, and that nothing is guaranteed. The Employer emphasizes that McCaffrey in his speech to unit employees, stated the Union would “insist” on super seniority for shop stewards in any contract with Cardinal. However, as the Employer itself made clear to employees in its own campaign literature, 23 Kratz had the position of switcher, which the record establishes is a job preferred by employees. 24 While Lauer testified that there was alot of talk in the yard about Kully’s remark, and it was “common knowledge by the time it got to me”, I find this testimony to be insufficiently precise to establish that more than 5 employees heard about Kully’s comments. 25 While the Employer also contends that Kully’s conduct should be found objectionable, based on Sibilia’s testimony that Cruz told him that he was pressured by “senior drivers”, and that on one occasion, when Kully appeared, Cruz looked “stone faced” and changed the subject of the discussion, I reject this contention. As discussed above, there is no evidence that the “pressure” that Cruz testified he felt was based on any unlawful or threatening statements by Kully, or by anyone else. JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 18 everything is subject to negotiation, nothing is guaranteed and employees should be skeptical of the Union’s promises as to what benefits union representation would bring to employees. Thus employees could be expected to properly evaluate McCaffrey’s statement that the Union would “insist” on super seniority, as well as the statements of Pratt and Kully, and realize that super seniority for shop stewards, might or might not be included in a contract between the Union and the Employer. Furthermore, the Employer misrepresented McCaffrey’s comments to employees about super seniority. He told employees that the Union would “insist” only on super seniority for stewards with respect to layoff and recall. Here, the comments made to employees by Kully and Pratt related to super seniority for vacations and job bidding. With respect to these items, McCaffrey did not inform employees that the Union would insist on such a provision and specifically told them that these issues would be considered and discussed with the employees. Furthermore, I conclude that it is “illogical” to conclude that the statements of Kully and Pratt were coercive or likely to influence employees to vote for the Union. Thus even if employees could not properly evaluate the statements, and more likely to believe that the Union’s certification would automatically result in super seniority for shop stewards and a possible adverse affect on their vacation and job bidding, it is not likely that such fears would persuade them to vote for the Union. If such employees feared the imposition of super seniority for stewards, they would be likely to vote against the Union, which would be best way to eliminate the possibility of super seniority and the consequent effect on their conditions of employment. Therefore the comments of Kully and Pratt are neither coercive, nor objectionable. Underwriters Laboratories, 323 NLRB 300, 302 (1997) (Statement by union representative, that employees would lose their jobs if they voted against Union, not objectionable, since it is illogical, since employees would be expected to conclude that Employer would not fire employees who aided its cause); Janler Plastic Mold, 186 NLRB 540 (1970) (No evidence that employees had reason to believe Employer favored Petitioner, and was disposed to discharge employees for voting against Petitioner). Finally, I note that the Employer itself encouraged any possible fears that the employees might have about super seniority for shop stewards, notifying employees in its literature that the Union’s contracts with two other Employers contain super seniority clauses for shop stewards. I find that by this conduct the Employer is estopped from relying on the Union’s alleged statements in this regard. B.J. Titan Service Co., 296 NLRB 668 (1989) (“A party to an election is ordinarily estopped from profiting from its own misconduct”) The Employer also argues that the misconduct of Kully and Pratt, coupled with alleged misconduct of others, including unknown individuals, was so “aggravated as to create a general atmosphere of fear and reprisal rendering a free and fair election impossible”. Westwood Horizons Hotel, 270 NLRB 802, 803 (1984); YKK Inc., 269 NLRB 82, 83 (1984); Sequatchie Valley Coal Corp., 281 NLRB 726 (1986). In this connection it relies on the statements made by Kully and Pratt to employees, and the evidence that employees Cruz, Trinidad and Aguilar told various supervisors that they felt “pressured” by senior drivers concerning how they should vote. The Employer also relies on Cruz’s statements to supervisors that employees and the company could find out how he voted, and he could lose his job because he signed a card, and the testimony of Lauer that he was told that employees who voted against the Union would have to pay initiation fees, and the testimony of Kratz and Troy which allegedly established an anonymous phone call “threatening” an Employer’s manager and her child. However, I find that these incidents fall well short of meeting the Employer’s heavy burden of establishing “the existence of a general atmosphere of fear and reprisal rendering a JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 19 free election impossible”. Lamar Advertising, supra; Cornell Forge Co., 339 NLRB 733, 734 (2203). I have already discussed the conduct of Kully and Pratt, under the party standard above, and concluded that the statements made by them with respect to super seniority of shop stewards, and its possible affect on employees conditions of employment were not coercive or objectionable. That conclusion ipso facto, applies to considering such conduct under the more stringent third party standard. Therefore these comments cannot be considered, in assessing whether there was an “atmosphere of fear and reprisal rendering a free election impossible”. Similarly, I found above that the evidence that employees Cruz, Trinidad and Aguilar told supervisors that they felt “pressured” by senior drivers (which may have included Kully and Pratt), with regard to the election, not to be probative of any unlawful or objectionable conduct. As I observed above, employees could feel “pressured” by perfectly lawful campaign rhetoric, and in the absence of any evidence that the statements made to these employees that caused this “pressure” was coercive or threatening, this evidence also cannot be probative of establishing the requisite “atmosphere of fear and reprisal”. As noted, the Employer also relies on the testimony of Scott that Cruz told him that he was concerned that employees might find out how he voted, and that Cruz told Sibilia that he signed a card, and that senior drivers told him that since he signed the card, the company would know that he signed, and if the Union did not get in, (Cruz) would most likely lose his job. I note initially that this testimony is hearsay, vis á vis, anything that Cruz asserts was said to him by any other driver. Apart from that issue, Cruz was assured by Scott that his fears of anyone finding out about how he voted were misplaced, since it was a secret ballot, and no one can find out how he voted, and by Sibilia that Cruz’s fears of losing his job because he signed a card was not true, and the “company would not do that to you”. Moreover, the Employer in several of its handouts to employees during the campaign, emphasized that the election is by secret ballot, and that no one will know how the employees voted. In these circumstances the statements allegedly made to Cruz, do not warrant setting aside the election. Corner Furniture Discount Center, 334 NLRB 1122, 1124 (2003). Note that in Corner Furniture, supra, similar statements made to employees were held not to be objectionable, in an election decided by one vote. Here in contrast, the vote margin was large (36 votes), and there is no evidence that the alleged remarks to Cruz was disseminated to anyone. This is further support for my conclusion that this conduct did not warrant the election being set aside. Cornell Forge, supra at 734 (No showing of dissemination, and Union won election by 16 votes). The testimony of Lauer, also relied upon by the Employer, can be treated similarly. The precise statement that Lauer testified was told to him by an unidentified employee,26 was that if he did not vote for the Union, the Union would find out, and he’d have to pay an initiation fee, when other people would not have to. As in the case of the statements made to Cruz, the employees were notified several times by the Employer’s own literature, that the ballots were secret and no one would or could find out how an employee voted. Therefore, Lauer could not have taken this alleged threat seriously, and it could not have affected the election. Corner 26 I note that Lauer refused to identify the employee who gave him this information. When he did so, I denied the Petitioner’s motion to strike Lauer’s testimony. While I affirm that ruling, I do observe that it would be highly questionable to set aside an election, based on such testimony, where an employee refuses to divulge the identity of the person who allegedly furnished the information, alleged to be objectionable. JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 20 Furniture, supra. Also, there is no evidence that the comment made to Lauer was disseminated to any employee, and the margin of victory by the Union in the election was 36 votes. Cornell Forge, supra. Finally, the Employer relies on the testimony of Troy and Kratz, concerning an alleged anonymous “threat” to the Employer’s Transportation Manager Marybeth Affeldt. However, the evidence submitted by the Employer falls short of establishing that Affeldt received a phone call which included a “threat”. Thus, Kratz testified that he spoke to Affeldt directly, and she told him that she had received a “prank” call that included foul language towards Affeldt and her daughter. She added that she had called the police, who were allegedly monitoring her phone. Therefore, Kratz’s testimony, aside from being purely hearsay, does not even reference a threat, since he referred only to “prank” call, including foul language. The fact that Affeldt may have called the police, and that the police may have watched her house, is also not probative of what the anonymous caller had said to Affeldt. Troy’s testimony is even less probative. It consists of double hearsay testimony, that Ken Howell, Troy’s supervisor told him that there had been a “threatening” phone call made to Affeldt. However, no details of what the caller allegedly said to Affeldt was provided to Troy or Kratz. I also note the Employer sent out a memo, referring to this incident, stating that a manager had received a “threatening phone call”, but without detailing what was allegedly said during the call. While there in some evidence in the record that Affeldt is no longer employed by the Employer, no explanation was offered by the Employer as to why Affeldt was not called as a witness, to testify as to what was said to her during this call. Further, even apart from Affeldt, the Employer presumably knew what the specific statements were that were allegedly made to Affeldt, since it sent out a memo, describing it as a “threatening” phone call, and Howell, a supervisor of the Employer, informed Troy about a “threatening” phone call made to Affeldt. However, the Employer failed to call Howell or any other member of management, to testify as to the precise statements made to Affeldt during this call. I conclude that in the absence of any probative evidence that, Affeldt received a “threatening” call during the campaign, that this incident cannot be considered in assessing “an atmosphere of fear and reprisal” existed at the time of the election, rendering a free and fair election impossible”. Further, even if this incident could be considered, I find it insufficient to meet the Employer’s heavy burden of proof, since it represents a single incident, not involving any employee directly, and in view of the large margin of victory for the Union. Cornell Forge, supra. I therefore conclude that the various incidents relied upon by the Employer neither singly or collectively, comes close to establishing the existence of an “atmosphere of fear and reprisal rendering a free and fair election impossible”. I have reviewed carefully, the precedent cited by the Employer, 27 and find these cases clearly distinguishable. All three of these cases consisted of pervasive and severe threats of bodily harm and violence, and in some instances, actual acts of violence. Here although I have concluded above that the Employer has not established that any coercive “threats” were made to anyone during the campaign, even assuming a finding that some or all of the conduct alleged by the employer is deemed to constitute threats, none of them represent threats of bodily harm or violence, as in the cases cited by the Employer, and as in other cases where the Board has found third party conduct sufficient to warrant a new election. Smithers Tire, 308 NLRB 72 (1992); Buedel Food Products, 300 NLRB 638 (1940); Picoma Industries, 296 NLRB 498, 499 (1989); Steak House Meat, 206 NLRB 28 (1973). 27 Westwood Horizons, supra; Sequatchie Valley, supra and YKK, supra. JD(NY)–40–07 5 10 15 20 25 30 35 40 45 50 21 I therefore reaffirm my conclusion set forth above, that the Employer has not established the existence of conduct so aggravated that it created a general atmosphere of fear and reprisal rendering a free and fair election impossible. Corner Furniture, supra; Cornell Forge, supra; M.B. Consultants, supra; see also, Owens Corning Fiberglass Co., 179 NLRB 219, 223 (1969) (Board relies on fact that no actual physical violence occurred, and the fact that no Union official made any improper conduct). Therefore, I recommend that Objection No. 4, that the Union threatened reprisals against employees, be dismissed. Objection No. 3 alleges that the Union misrepresented to employees that it could determine how employees voted in the election. The Employer presented no evidence that any representative of or alleged agent of the Union made any such statement during the campaign. While as detailed above, some evidence was presented that non-agents of the Union may have made such comments to some employees, for the reasons and precedent28 set forth above, such conduct does not warrant setting aside the election. Accordingly, I also recommend that Objection No. 3 be dismissed. In Objection No. 5, the Employer alleges that the Union, through its agents and others engaged in electioneering on February 22nd and 23rd. The Employer did not present a scintilla of evidence that anyone, Union agent or not, engaged in any electioneering on February 22nd or 23rd. Therefore this Objection must be dismissed as well. I so recommend. CONCLUSION I recommend that all of the Employer’s objections be dismissed and that an appropriate certification issue29 Dated, Washington, D.C., August 15, 2007. ____________________ STEVEN FISH Administrative Law Judge 28 Corner Furniture, supra. 29 Pursuant to the provisions of Section 102.69 of the Board’s Rules and Regulations, Series 8, as amended, within 14 days from the date of issuance of this Recommended Decision, either party may file with the Board in Washington, D.C. an original and eight copies of the exceptions thereto. Immediately upon the filing of such exceptions, the party filing same shall serve a copy therefore upon the other parties and shall serve a copy thereof upon the other parties and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board may adopt this recommended Decision.