Pony Express Courier Corp.

PONY EXPRESS COURIER CORP. Pony Express Courier Corporation and Montana Union of Guards. Case 19-RC-10477 25 November 1986 DECISION ON REVIEW AND CERTIFICATION OF REPRESENTATIVE By CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS The National. Labor Relations Board, by a three- member panel,' has considered objections to an election held 23 June 19821 and the Regional Di- rector's report recommending disposition of them. The election was conducted pursuant to a Decision and Direction of Election issued on 13 May. The tally of ballots shows nine for and six against the Petitioner, with two challenged ballots, an insuffi- cient number to affect the results. The ]Board has reviewed the record in light of the exceptions and brief, has adopted the Regional Director's findings and recommendations, and finds that a certification of representative should be issued. In fording that the threats of future physical injury made by employees De Long, Eepers, and Leavitt to their coworkers do not warrant setting aside the election, the Regional Director relied on Hickory Springs Mfg. Co., 239 NLRB 641 (1978). In Home & Industrial Disposal Service, 266 NLRB 100 (1983), however, the Board overruled Hickory Springs and expressly rejected as unrealistic the rule that a union agent's threats of bodily harm, damage to personal property, or the like cannot, as a matter of law, influence an election merely be- cause the threat in question is couched in terms of possible future conducl;. Notwithstanding this change in Board law, we agree with the Regional Director's finding that the threats in the instant case do not warrant setting aside the election. We note that De Long, Eepers, and Leavitt were not agents of the Petitioner, that the objected-to threats were not directed to soliciting or influencing em- ployees to vote for the Union, and that the threats were not made against a backdrop of an actual in- cident of physical injury or damage to property or followed by an act of violence. Further, the, inci- dents in question all occurred in May , several weeks before the 23 June election,2 and were not ' All dates refer to 1982. 2 Contrary to the dissent, we find that Eepers' threat to Cupp is enti- tled to little weight. Cupp's own testimony reveals that Eepers was "pretty irate" over reports that Cupp informed the Employer of employ- ee organizing activity and "got [Eepers] in a bunch of trouble." It was in this context that Eepers remarked that if Cupp did it again , Eepers would "beat the shit" out of him. The hearing officer stated that there is no evi- dence of dissemination of Eepers' remarks to other employees. In sum, 265 rejuvenated at the time of the election. Thus, view- ing the threats separately as well as cumulatively, we ford that they are insufficient to have created an atmosphere of fear and reprisal which rendered a free expression of choice of representative impos- sible.3 Accordingly, we affirm, the Regional Direc- tor's decision that the conduct does , not warrant setting aside the election. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Montana Union of Guards and that it is the exclusive collective-bargaining representative of the employees in the following unit: All full time and regular part time courier drivers employed by Pony Express Courier Corporation in Helena, Missoula, Billings and Great Falls, Montana, but excluding confiden- tial employees and supervisors as defined in the Act. CHAIRMAN DOTSON, dissenting. I find that the threats of bodily injury made by union supporters De Long, Eepers, and Leavitt to other unit employees were sufficiently egregious to warrant setting aside the election . The majority relies on the absence of any agency relationship be- tween the Union and these three employees and the lack of actual injury to person and property in concluding that the conduct was not objectionable. In so doing, they overlook several critical consid- erations. The Board recognizes that in certain circum- stances third-party conduct can interfere With the conduct of an election even absent a "backdrop of actual violence." See RJR Archer, Inc., 274 NLRB 335 (1985). In the instant case employee Pat De Long "blew up" during a conversation with another employee and the Employer's managers and officers and vowed to "bust" or "break" the head of anyone we find that Eepers' conduct, which was plamly directed at one employ- ee rather than the entire bargaining unit, was too isolated to create a gen- eral atmosphere rendering impossible the exercise of free choice in the election held some 6 weeks later. s RJR Archer, Inc, 274 NLRB 335 (1985), on which our dissenting colleague relies, does not command a different result, for the threats in that case were far more serious than those here . In Archer, a union sup- porter, when told by an employee that he would vote against the union, threatened to burn the employee 's home and van if he did not vote for the union. Also, another union supporter told an employee to think before he voted, that things can happen to vehicles or even to a wife and kids. The employee also received threatening telephone calls, and the threats were rejuvenated daily until the election by union supporters asking the employee whether he had "made it through the night " 282 NLRB No. 36 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who crossed a picket line.1 Later the same day em- ployee Eric Leavitt warned that he was "ready and anxious 'to get his baseball bat out and get it warmed up' in the -event of a strike. The" record discloses that De Long's threat 'was-disseminated to at least two other employees and Leavitt reported his threat to three coworkers. The dissemination of threats of physical harm was integral to the Board's setting aside -the election in RJR Archer, Inc., supra. It takes on even ' greater significance where, as here, it occurs within a relatively small unit of approximately 20 employees and where a change in no more than 3 votes would alter the outcome of the election. 1 According to testimony of two witnesses, the threat was to "kill" anyone who crossed the picket line. The hearing officer did not resolve the conflict. In, addition to the foregoing, the majority ignores the fact that Jeff Eepers' telling employee Mark Cupp that he would "beat the shit out of [Cupp]" if he spoke with the branch manager again caused Cupp to terminate his employment. Cupp was sent back to the Employer's premises by the unemploy- ment office and returned to work only after being urged by the Employer to do so. Thus, in view of the number and severity of the threats, their dissemination, and their established tendency to coerce, I would find that the conduct tended to quell employees' expression of free choice and destroyed laboratory conditions neces- sary for the conduct of a free and fair election.2 Accordingly, I would set aside the election and direct that a second election be conducted. 2 See generally Steak House Meat Co., 206 NLRB 28 (1973).