Price Brothers Co.

822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Price Brothers Company and Provisional Mississippi Laborers District Council, a/w Laborers Interna- tional Union of North America, AFL-CIO, Peti- tioner. Case 15-RC-5134 June 21, 1974 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 15 of the National Labor Relations Board on May 16, 1973, an election by secret ballot was conducted in the above-entitled proceeding on June 15, 1973, under his direction and supervision. Upon the conclusion of the balloting, a tally of ballots was furnished the parties which showed that, of approximately 75 eligible voters, 72 cast ballots, of which 37 were for, and 35 against, the Petitioner. There were no challenged ballots. Thereafter, the Employer filed timely objections to conduct affecting the results of the election. In accordance with the Board's Rules and Regula- tions, the Regional Director caused an investigation to be made of the Employer's objections. On August 3, 1973, he issued a Notice of Hearing, directing that a hearing be held before a Hearing Officer for the purpose of taking evidence on issues raised by all of the Employer's objections. On August 7, 1973, the Regional Director issued an Order Transferring Case to the Board, wherein the Hearing Officer was directed to prepare and cause to be served on the parties a report containing resolutions of the credibil- ity of witnesses, findings of fact, and recommenda- tions to the Board as to the disposition of the Employer's objections. On October 25 and 26, 1973, a hearing was held before Hearing Officer Dwain Erwin at Hattiesburg, Mississippi. All of the parties appeared and participated in the presentation of evidence. On March 11, 1974, the Hearing Officer issued and served on the parties his Report and Recommenda- tion on Objections to Conduct of Election, in which he recommended that the Employer's objections be overruled in their entirety. Thereafter, the Employer filed timely exceptions to the Hearing Officer's report and a supporting brief, and the Petitioner filed a "Memorandum" in support of the Hearing Offi- cer's recommendations. 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. 211 NLRB No. 119 The Board has considered the objections, the Regional Director's report, the Employer's excep- tions, and the parties' briefs, and hereby adopts the Regional Director's findings, conclusions, and rec- ommendations. Three of the Employer's seven objections alleged that employees were threatened with physical harm if they did not join or support the Union. With respect to these objections, the Hearing Officer found, on the basis of evidence elicited at the hearing, that employee Travis was told by employee McSwain, who testified that he was told by a former employee, Pettigrew, that, at a recent meeting of union officials representing several of the cities in the area, those present voted to kill Travis, but that the local union president, Bivens, put a stop to it. Although the Hearing Officer found that Travis took the threat seriously and told his wife and another employee about it, he found no evidence that the threat actually originated with the Union. Instead he found that the threat was likely fabricated by either McSwain or Pettigrew. Without actually determining who originated the threat, the Hearing Officer found that, even assuming, as the Employer contends, that Pettigrew originated the threat, there was no evidence that Pettigrew had actual or apparent authority to act as an agent for the Union. The Hearing Officer further found that, because Travis told only one other employee about the threat, it did not create a general atmosphere of fear or coercion which would require that the election be set aside. The Employer excepts to these findings, essentially contending that Pettigrew gave the appearance of being a union agent, since he accompanied admitted union officials on visits to employees' homes during the organizational drive to solicit support for the Union; that, in any event, the threat was taken seriously by those hearing it, thereby creating an atmosphere of fear and coercion; and that the Board should scrutinize particularly closely the impact of the threat here in view of the close vote. In support of its position, the Employer cites, among other cases, Steak House Meat Company, Inc., 206 NLRB No. 3. We find no merit in the Employer's contentions. The Hearing Officer found no evidence that the threat was in any way attributable to the Union. The Employer does not challenge that finding, but instead contends that Pettigrew gave the appearance of representing the Union. Even assuming, arguendo, that employees might have a basis for believing that Pettigrew, because of his friendship with certain union officials, had inside knowledge as to what actions the Union was contemplating, and assuming further that Pettigrew was the one who initiated the rumor of the threat to Travis' life, we would still not PRICE BROTHERS CO. find the threat here sufficient to set aside the election. Under long-established precedent, 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 representatives impossible.' We agree with the Hearing Officer that, inasmuch as there was no evidence that the threat was widely circulated, it is unlikely that it generated an atmos- phere of fear and reprisal. Clearly, the Steak House case is not authority to set this election aside. Contrary to our dissenting colleague, the record in this case does not reveal that any threat was, in fact, made against the life of Roy Travis. Further, the testimony reveals that there was no motive for the Union to have made such a threat. Travis was aware of this fact and testified as follows: That's the reason I got so excited, because I hadn't did nothing for nobody to kill me about. If I had gone and did something, I could expect that. That's why I went and bought me a gun, because I don't know why nobody want to kill me about, because I ain't did a thing at work but try to make a living. Perhaps Travis should have investigated McSwain's warning more carefully before buying a gun. Travis had not been involved in the campaign for or against the Union. Why would the Union want to kill him? He did ask himself the question, but instead of probing for an answer, he was so upset that he rushed out and bought a gun. McSwain told him that he (McSwain) had been told by Pettigrew, who presumably had been told by another person, that the Union had threatened Travis' life. But Pettigrew denied making any such statement to McSwain. And Bivens, the Petitioner's president, did not know what Travis' wife was talking about when she asked him why the Union wanted to kill her husband. On this state of the record, including hearsay testimony twice removed, we are unwilling to find that a threat had been made against Travis' life, 823 whether or not authorized by the Union. Of course, another question would be presented if the finding were warranted, as it is not, that such a threat had, in fact, been made or even if an unfounded rumor of this nature could reasonably be believed by the threatened individual and other employees in the unit. But we cannot agree with our dissenting colleague that a bare, unauthorized, unsupported, self-serving statement made by any employee to another that the latter's life was in danger during a union campaign should be sufficient to set an otherwise valid election aside. Such a rule would open the door to setting aside virtually every Board election. We think this is an extreme position unwarranted by the facts in this case and most alarming in its application to Board election proce- dures. Accordingly, we adopt the Hearing Officer's recommendation to overrule the above objection of the Employer. As the Petitioner has received a majority of the valid ballots case, we shall certify it as the exclusive bargaining representative of the employees in the unit found appropriate. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Provisional Mississippi Laborers District Council , a/w Laborers Internation- al Union of North America, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organiza- tion is the exclusive representative of all the employees in the unit found appropriate herein for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. CHAIRMAN MILLER, dissenting: I would not validate any election wherein a threat has been made to the life of an employee in connection with the election or the campaign, regardless of who authorized or did not authorize the threat. There was such a threat here.2 The election should be set aside. 1 Central Pholoco/or Company, Incorporate4 195 NLRB 839, and cases cited therein at fn. 2. 2 The majority's efforts to gloss over the facts is, to me, unpersuasive. The facts are that Travis, the threatened employee, refused to sign an authorization card and expressed antiunion views to three employees. Pettigrew, who initiated the story about the vote to kill Travis, was an active campaigner for the Union . The story of the vote to kill is a threat, in my view. It was certainly a threat so far as Travis was concerned , and I doubt that he would have been comforted to know that persons knowledgable in the law of evidence might later call it mere hearsay.