Friendly Ice Cream Corp.

National Labor Relations Board - Board DecisionsJun 25, 1975

211 N.L.R.B. 1032 (N.L.R.B. 1975)

1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Friendly Ice Cream Corporation and General Team- sters, Chauffeurs , Warehousemen and Helpers, Building Materials, Heavy & Highway Construc- tion Employees Local Union No. 404, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 1-CA-8870 June 25, 1974 SUPPLEMENTAL DECISION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 3, 1973, the National Labor Relations Board issued its original Decision and Order in the above-entitled proceeding,' finding that the Respon- dent had violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union which was certified by the Board as the exclusive bargaining representative of the Respondent's deliverymen, following a Board election. The Respondent filed a petition to review and set aside the Order of the National Labor Relations Board, and the Board cross-applied for enforcement of its Order. The United States Court of Appeals for the First Circuit, while sustaining the Board in all other respects, remanded the case2 to the Board for "further articulation of its reasons for rejecting the company's complaint of improper surveillance by union adherents" at a company dinner. The Board, having accepted the remand, issued a notice advising the parties that they may file a statement of position or a brief with respect to the issues raised by the court's remand. Thereafter, the Respondent filed a response to the Board's notice. 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. The Board, having reviewed the case in light of the entire record, the court's opinion, and Respondent's response to the Board's notice, is satisfied that the remanded issue may be resolved on the basis thereof. In remanding the case, the court, noting a passage from the Hearing Officer's report,3 stated that while it was susceptible of several interpretations, it 1 205 NLRB No. 31. 2 Friendly Ice Cream Corp. v. N.L.R.B., decided February 6, 1974, Docket No. 73-1268 (not for publication). 3 "There is no evidence that the taking of five photographs of fellow employees by Bailey at the dinner meeting was anything but a frolic of Bailey's own impetuosity. It was not, according to the record, union sponsored in any way. There is not one item of testimony that the Petitioner herein [the Union ], at any time, near the election or remotely, even in the normal heat of a strike of some three weeks duration , ever threatened, intimidate[d], coerced or was even impolite to any employee concerned herein. If any of Employer's witnesses [were] subjectively fearful of union appeared that the Hearing Officer, "while acknowl- edging or assuming arguendo that voters were fearful of reprisal, rejected such fear" because the alleged conduct, the picturetaking, had not been on union orders and the union was otherwise blameless. The court then noted that under Cross Baking4 "the question . . . is not the culpability of the union, but whether an atmosphere of fear and coercion was created in fact." The Board has reviewed the Hearing Officer's report and has concluded that objective evidence outweighs certain subjective testimony and that in fact an atmosphere of fear and coercion did not exist which would warrant setting aside the election. Although the court in Cross Baking held that state- of-mind testimony is appropriate at a postelection hearing where the issue is whether there existed an atmosphere of fear and coercion making a fair election impossible, it also reaffirmed the Board's practice of analyzing the circumstances surrounding the election on the basis of objective considerations. Therefore, the court made it clear that where objective evidence did not establish a reasonable basis for concluding that a coercive atmosphere existed, "[e]ven [if] witnesses testified that they were .. . frightened, the Board would have been more than justified in finding such testimony unpersua- sive." Cross Baking Company v. N. L. R. B., supra, 1348-49. In originally adopting the Hearing Officer's report that the election should not be set aside, the Board considered the conduct involved herein in the context of a preelection campaign in which the Union had never "intimidated, coerced, or was even impolite to any employee concerned herein" not "even in the normal heat of a recognitional strike of three weeks duration." It is clear that the Hearing Officer was mindful of the first circuit's decision in Cross Baking Co. and, therefore, permitted Respon- dent's witnesses to testify as to their subjective fear. As required by Cross Baking, the Hearing Officer accorded the subjective evidence whatever weight it was due, but he was also mindful of Board policy of evaluating the circumstances objectively. We view the thrust of the Hearing Officer's observations as to the lack of union responsibility for the alleged objectionable conduct merely as a factor reprisal because of Bailey's picture taking , they did not connect it with Petitioner herein, but with a general apprehension acquired through the media, attempting to accuse Petitioner of the sins of others extremely remote from this scene . Such fear is hypersensitive subjectively and must be rejected when this entire record is read objectively." 4 Cross Baking Company v. N.LR.B., 453 F.2d 1346 (CA. 1). s Absent a remand to the Hearing Officer, we would not speculate specifically as to what he intended by certain language in his report or whether he relied on credibility determinations inasmuch as his report contains sufficient factual findings justifying the conclusion reached here. We also agree with the court's view that it was not necessary for the 211 NLRB No. 150 FRIENDLY ICE CREAM CORP. 1033 bearing on whether the employees had in fact a reasonable basis for their fear, and we do not, in any event, rely on any inference or implication that union responsibility for the conduct creating an atmosphere of fear must be shown if the election is to be set aside. We reaffirm our original conclusion because we conclude that the subjective testimony that fear was induced by Bailey's picturetaking is entitled to little weight in light of the countervailing objective evidence noted hereafter. We note that all of the employees who testified concerning their fear, except Keeler, drove the Respondent's trucks for the entire duration of the Union's recognitional strike and, in doing so, encountered no union conduct giving them cause to be fearful that their opposition to the Union might subject them to harmful retaliatory action. The dinner was a relatively small affair and it seems clear that those union adherents present had no need to resort to picturetaking in order to identify employees opposed to the Union. Moreover, all of the employ- ees appearing in the pictures, including Keeler and Morrell, posed to have their photographs taken. Employee Keeler's fear, if any, appears related to the fact that he posed for a picture with his arm around an accordion girl when his wife was not present at the dinner. With respect to employee Morrell, who also testified that he was fearful of the picturetaking, the evidence discloses that he not only posed for a picture at the election eve dinner, but also posed for one the following day in the Respondent's lunch- room wearing a placard marked "Vote No." In our view, this does not indicate an individual who was fearful of having his picture taken or his union views known. Considering all the circumstances in this case, we find that the testimony of those employees who testified concerning their fear can be given little weight in light of the objective evidence previously noted. Accordingly, we are satisfied that Bailey's picturetaking did not create an atmosphere of fear or coercion warranting the setting aside of the election. We, therefore, reaffirm our original finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the certified Union. ORDER Employer to establish that in fact a certain number of voters actually changed their votes but need establish only that fear of reprisal sufficiently influenced or affected the decision of the voters so as to prevent them from registering a free and untrammeled choice. Therefore, to the extent the Hearing Officer's report can be read to rely on such impermissible standard, we do not endorse or rely on it. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby affirms as its order the Order heretofore entered in this proceeding on August 3, 1973.