Ciervo Blanco, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1974

211 N.L.R.B. 578 (N.L.R.B. 1974)

578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ciervo Blanco, Inc. & Blanco Venado, Inc. and Union
de Periodistas, Artes Graficas y Ramas Anexas
Afiliada a The Newspaper Guild (AFL-CIO),
Petitioner. Case 24-RC-5091
June 14, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election an election was conducted on July
11, 1973, under the supervision of the Regional
Director for Region 24 among the employees in the
unit described below . Upon the conclusion of the
election , the parties were furnished with a tally of
ballots which showed that, of approximately 382
eligible voters, 340 ballots were cast, of which 160
were for the Petitioner , 136 were against the
Petitioner, and 37 were challenged . There were seven
void ballots . The challenged ballots were sufficient to
affect the results of the election . Thereafter, the
Employer filed timely objections to conduct affecting
the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations , the Regional Director
conducted an investigation and on March 6, 1974,
issued and duly served on the parties his Report and
Recommendations on Objections and Challenged
Ballots in which he recommended that the objections
be overruled, that the challenges to 15 ballots be
sustained , that the remaining challenges not be
resolved as they do not affect the results of the
election , and that the Petitioner be certified.
Thereafter, the Employer filed timely exceptions to
the Regional Director 's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case , the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. The following employees of the Employer
I We adopt the Regional Director's recommendation that Objections I
and 2 be overruled and that challenges to 15 ballots be sustained in the
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All production and maintenance employees,
including plant clerical employees , employed by
the Employer at its factory location in Fajardo,
Puerto Rico , but excluding all office clerical
employees , professional personnel , guards, and
supervisors as defined in the Act.
5. The Regional Director found no merit in
Employer's Objections 3, 4, 5, 6, 7, and 8 and
recommended that they be overruled' and that a
certification of representative be issued . He conclud-
ed that Petitioner 's acts of violence and repeated
threats were directed at maintaining its picket line,
rather than influencing the election , that the miscon-
duct was dissipated by the almost 30-day hiatus from
the end of the objectionable conduct to the date of
the election and by Petitioner's adherence to a
private settlement agreement . We do not agree. In
our view, Petitioner's conduct interfered with the
employees ' free choice in the election . For the
reasons discussed below , we shall order the election
set aside and a second election be held.
Petitioner on or about May 28 , 1973, established
and maintained a picket line at Employer's plant in
support of its demands for recognition and its
bargaining position . From May 28 through June 5,
pickets, in the presence of Petitioner's organizers,
threatened and assaulted employees attempting to
cross the picket lines . On June 5 , a petition was filed.
Between June 6 and 12 , an employee 's automobile
was firebombed and homes and automobiles of other
employees were damaged . Individual strikers and
groups of strikers visited employees ' homes and
warned and threatened them not to cross the picket
line or their persons and families would be injured
and property would be damaged. An organizer for
Petitioner was present during these visits to employ-
ees' homes.
On June 15, the Employer and the Petitioner
entered into a private settlement agreement. The
agreement provided that (1) Petitioner withdraw its
picket on or before 7 a.m. that day and notify all
employees over the radio of such withdrawal and
that all employees might return to work except eight
named persons (who presumably engaged in picket
line misconduct); (2) the parties execute a stipulation
before the Board for an election on July 11, 1973; (3)
the eight named persons referred to above be
reinstated if Petitioner won the election , but not if
Petitioner lost; (4) the Employer withdraw unfair
absence of exceptions thereto.
211 NLRB No. 51
CIERVO BLANCO , INC. 579
labor practice charges it had filed against Petitioner;
(5) the Employer would take steps after the election
to have criminal proceedings involving picket-line
misconduct dropped; (6) the agreement is of a
private nature , not to be given publicity by either of
the parties ; and (7) any doubt , controversy, or
dispute arising in relation to the agreement be
resolved between designated attorneys for the respec-
tive parties . An addendum to the agreement provides
that the Employer shall take no reprisals or discrimi-
nate against any employee for union activities.
There is no allegation or evidence of objectionable
conduct occurring after June 15 . However, the
Employer contends that a Petitioner leaflet distribut-
ed on June 22, which stated , "If they [Employer]
want war, then we will give them [Employer] war
whenever they want it again," served to keep alive
the atmosphere of terror , fear, reprisal , and coercion
that it contends existed prior to June 15. The
Employer also contends that Petitioner violated the
secrecy clause of the June 15 private agreement by
publicizing the agreement.
The agreement was adhered to except for the
alleged breach of its no-publicity clause by Petition-
er.
The Regional Director recommended the overrul-
ing of the objections to the extent that they involve
events antedating June 5, the date of the petition.
However , he considered such events as they lent
meaning and dimension to postpetition conduct. The
Regional Director found that the references to "war"
in the leaflet were directed toward violations of the
settlement agreement and not toward a resumption
of the acts of violence . And the breach of the privacy
clause of the private agreement in no way interfered
with the free choice of the employees.
The Regional Director found that the conduct that
occurred after the filing of the petition was of so
aggravated a character as to create a general
atmosphere of fear and reprisal that rendered a free
choice of representative impossible.
However, because (1) the violence was directed
toward effectiveness of the strike rather than toward
influencing the election , (2) there was substantial
adherence to the settlement agreement , and (3) there
was a 30-day period of peace before the election, the
Regional Director found that the affects had been
dissipated . He therefore recommended certification.
We do not agree. This conduct during the critical
period, no matter when during that period it occurs,
is ground to set aside an election . Moreover , there is
a fundamental inconsistency in saying at one point
that the conduct made a free election impossible and
immediately thereafter saying that the violence does
not matter because it had another object . We have
serious doubts that the employees made such nice
distinctions . Accordingly, we shall set aside the
election conducted on July 11, 1973, and order a new
election.
ORDER
It is hereby ordered that the election of July 11,
1973, among the employees in the unit hereinbefore
set out, be, and it hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]