Hamilton Label Service, Inc.

I)I('ISI()NS 1OF NA'IIONAI. I.ABOR RILA IONS BOARI) tlamilton Label Service, Inc. and New York Painting & Graphic Communications Union Local No. 51, International Printing and Graphic Cominunica- tions Union, AFI-CIO, Petitioner. ase 29 RC 4344 July 20. 1979 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN FANNIN( ANI) MIlMBtRS JI.NKINS ANI PNI1I.() Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended, a three- member panel has considered objections to an elec- tion' held on October 25. 1978, and the Regional Di- rector's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and brief and hereby adopts the Rcgional Director's findings and recommendations. The Regional Director's investigation revealed that an alleged threat was made by employee Richard Rodriquez to employee Paul Martinelli. lie found that, according to Martinelli, the remark was made the day after the first union meeting, which was held on July 24, 1978, several months before the instant petition was filed on September 21, 1978. Martinelli stated that he was unable to attend the union meeting but learned from a coworker that, in response to a remark made at the meeting that Martinelli would vote against the Union, Rodriquez had said that "[Martinelli] better vote yes, and if he goes to the boss and tells him that we are trying to get the Union in he's in for a beating." Martinelli says that he asked Rodriquez about the alleged threat the day after the meeting, and that Rodriquez replied: "Forget about it-just make sure you vote [y]es."2 The Regional Di- rector reported that, according to Martinelli, the con- versation ended and that was the last time the Union was discussed between Martinelli and Rodriquez. In dismissing this objection, the Regional Director found that it is well settled that the Board generally will not consider conduct which is engaged in prior to the filing of a petition in determining whether an elec- tion will be set aside.3 Thus, he pointed out that the alleged threat occurred nearly 2 months before the I The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tallywas: 15 for, and 13 against, the Petitioner; there were no challenged ballots. 2 Rodriquez acknowledges speaking with Martinelli and saying that "if Martinelli went to the boss and told him about the Union. it would hurt a lot of men-they may lose their jobs- if you do. 'I'11 kick your ass.' " The Ideal Electric and Manufacturing Company. 134 NLRB 1275 (1961). petition was tiled. In addition. the Regional l)irector found that Rodriquez did not reiterate his threat and that he left the Employer's employ almost I month before the election. 'lhe Regional Director found. therefore, that the threat was distant in time from the election and isolated in nature, and that the objection lacked merit. In support of' its exceptions, the Employer has sub- mitted an affidavit purportedly signed by Martinelli in which Martinelli says, initr alia. I confronted Rodriquez a second time around the middle of September. It could have been as late as September 21. 1978. based on my recol- lection of when Rodriquez' last day of work was (it was September 27, 1978), and how soon be- fore his last day of work I had spoken to him this second time. Rodriquez said to me: "I know you don't want the union But you better vote 'yes' or I'll break your legs.' ". Steve Cozio. who was next to me, heard this threat. On the basis of Martinelli's affidavit, Respondent now asserts, contrary to the Regional [)irector, that there were "two direct threats," that the second threat "did not occur prior to the filing of the petition." and that the threats were not isolated. It is well settled that the standard to be applied in determining whether an election will be set aside on the basis of conduct not attributable to one of the parties is whether the character of the conduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free expression of choice of representative impossible.4 Applying this standard here, even assuming that the alleged threat on Sep- tember 21 occurred as Martinelli described it, we find no merit in the Employer's objection. Thus, Rodri- quez' last day of work for the Employer was Septem- ber 27, nearly I month before the election was held on October 25. There is no indication that Rodriquez had any contact with Martinelli for more than a month before the election or for that matter that Rod- riquez had any further contact with the Employer's employees after September 27. Furthermore, we note that it was Martinelli who confronted Rodriquez on both occasions that the alleged threats occurred. In- deed, it was Martinelli who effectively prompted the alleged September 21 threat by confronting Rodri- quez without any indication of intervening events or remarks by Rodriquez that reasonably would have prompted the second confrontation. In addition, there is no allegation that any threat was made to 4 Prie Brothers (onmpan,. 211 NLRB 822. 823 (1974). The Regional Di- rector found that there was no evidence that Rodriquez was a union agent and that he did not represent himself as such. 243 NLRB No. 105 598 HAMIITON ABELI. SERVIC., INC. other employees or that the threat to Martinelli was widely circulated. 5 In sum, we find that the allegations presented in support of this objection do not constitute grounds for setting aside the election or require an evidentiary hearing. Thus. there are no allegations that Rodri- quez renewed or attempted to carry out the alleged threats after he left his job with the Emploser or dur- ing the month immediately preceding the election. Nor have any other circumstances been presented that would have 'rejuvenated the alleged threats so that they created an 'atmosphere of fear and coer- cion.'"6 Therefore, we find no merit in the Emplo\- er's Objection I. For the reasons given by the Regional Director. we adopt his recommendation as to the Employer's Ob- jection 2. As the Petitioner has received a majority of the 5The Regional Director's investigation revealed that several of the em- ployees who attended the July 24 meeting. including the "coworker" who allegedly spoke to Martinelli. deny that Rodriquez made the alleged threat at the July 24 meeting 6Cros Baking (Cornpnv. In. 191 NlRB 27. 28 (1971). valid ballots cast, we shall certify it itas the exclusive bargaining representative of' the employees in the unit found appropriate. ('ERII FI('AIION OF RFRf PRF SN-NTAIV 1:. It is hereby certitied that a majority of the valid ballots have been cast for New York Printing & Graphic ('ommunications Union .Iocal No. 5 1. Inter- national Printing and Graphic (ommunications ULnion. AIL ('10, and that, pursuant to Section 9(a) of the National l.abor Relations Act. as amended the said labor organization is the exclusive representative of all the employees in the following appropriate unit flor the purposes of collective bargaining in respect to rates of pay, wages, hours of' emploIment, or other conditions of employment: All pressroom employees, art department em- ployees and shipping employees employed by the Employer at 2090 5th Avenue. Ronkonkoma New York, excluding all other employees, in- cluding all inspection employees. office clericals. guards and supervisors as defined in the Act. 599