Waste Automation & Waste Management

National Labor Relations Board - Board Decisions

Jul 14, 1994

314 N.L.R.B. 376 (N.L.R.B. 1994)

376
314 NLRB No. 67
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
In the absence of exceptions, we adopt, pro forma, the hearing of-
ficer’s recommendation to overrule the Union’s Objections 1 and 6.
2 In recommending sustaining the Union’s Objection 2, the hearing
officer also relied on Jones’ threat in January or February 1992, be-
fore the decertification petition was filed, that the Employer could
close if the Union ‘‘[wound] up getting here.’’ While under the
Board’s decision in Ideal Electric Mfg. Co., 134 NLRB 1275 (1961),
this prepetition threat cannot, standing alone, be a basis for an objec-
tion, it may be considered where it ‘‘adds meaning and dimension
to related post-petition conduct.’’ Dresser Industries, 242 NLRB 74
(1979).
3 The Employer contends that its labor relations counsel, Jack
Cassari, neutralized Jones’ plant closure threat during the weeks pre-
ceding the election by telling the waste hauling employees that the
Employer intended to remain open even if the Union won the elec-
tion. We reject this contention because the purported cure was made
by a different company official whose statements made no reference
to Jones’ earlier threat. Under these circumstances, we do not find
that Cassari’s statements lessened the coercive impact on employees
of Jones’ threat.
4 In this regard, on May 11, 1994, employee Charlie Vile Sr. ex-
pressed to employee Joseph Fewtrell his fear that the plant would
close if the Union won the election.
5 We find it unnecessary to pass on whether the remaining conduct
found objectionable by the hearing officer constitutes additional
grounds for setting the election aside.
In setting aside the election, Member Devaney also agrees with the
hearing officer’s finding regarding the ‘‘other objectionable con-
duct.’’
Waste Automation and Waste Management of
Pennsylvania—Hauling Division, Division of
Waste Management of Pennsylvania, Inc. and
Jesseca B. Rebuck, Petitioner and International
Brotherhood of Teamsters, Local 115, AFL–
CIO. Case 4–RD–1559
July 14, 1994
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held May 14, 1993, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The revised tally of ballots shows 56 for and 69
against the Union, with 4 challenged ballots, an insuf-
ficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief, and has adopted the hearing offi-
cer’s findings1 and recommendations as modified
below.
We agree with the hearing officer’s recommendation
to sustain the Union’s Objection 2, but only for the
following reasons. The credible evidence established
that ‘‘not long after the decertification petition was
filed,’’ John Jones, the Employer’s general manager of
the waste hauling division, stated at a meeting attended
by 25 employees ‘‘that to stay competitive and to keep
our jobs, it would be better if we didn’t have the
Union. If we didn’t have the Union then they wouldn’t
have to close the doors.’’
We find that this threat of plant closure constitutes
objectionable conduct warranting setting aside the elec-
tion.2 Glasgow Industries, 204 NLRB 625 (1973);
General Electric Wiring Devices, 182 NLRB 876
(1970).
In its exceptions the Employer contends that the im-
pact of this threat on the election is de minimis in
view of the circumstances under which it was made
and the remoteness in time between the threat and the
election. We disagree.
In determining whether certain conduct is de mini-
mus, the Board takes into consideration the number of
violations, their severity, the extent of dissemination,
the size of the unit, and other relevant factors. Metz
Metallurgical Corp., 270 NLRB 889 (1984); Caron
International, 246 NLRB 1120 (1979).
Examining these factors here, we find that the threat
by Jones to close the facility in the event of a union
victory cannot be deemed de minimus. As the Supreme
Court has held, employees are ‘‘particularly sensitive’’
to threats of plant closure, and such threats are among
the types of unfair labor practices which ‘‘destroy elec-
tion conditions for a longer period of time than oth-
ers.’’ NLRB v. Gissel Packing Co., 395 U.S. 575, 611
fn. 31 and 619–620 (1969). Further, the fact that the
threat was made by Jones, one of the highest ranking
officials of the Employer, served to heighten its sever-
ity.3 Cartridge Actuated Devices, 282 NLRB 426, 428
(1986). In addition, the threat was made to 25 employ-
ees, nearly one-fifth of the unit. We regard this factor
as particularly significant when viewed in light of an-
other relevant factor, i.e., that the election was decided
by fewer than 25 votes. See, e.g., Hopkins Nursing
Care Center, 309 NLRB 958, 959 fn. 8 (1992). Fi-
nally, we note that Jones’ postpetition threat was not
isolated in nature. As noted above, Jones had pre-
viously made a similar threat of plant closure to an
employee, and the credited evidence revealed that
threats of plant closure were being disseminated
among employees as late as 3 days before the elec-
tion.4
Under these circumstances, we find that notwith-
standing the passage of time between Jones’ threat and
the election, the threat constitutes objectionable con-
duct and we, accordingly, set aside the election and di-
rect a new election.5
377WASTE AUTOMATION & WASTE MANAGEMENT
ORDER
It is ordered that the election in this case is set aside
and that this proceeding is remanded to the Regional
Director for Region 4 to conduct a new election.
[Direction of Second Election omitted from publica-
tion.]