Pepsi-Cola Bottling Co.

736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pepsi-Cola Bottling Co. of Los Angeles and James H. Abernathy, Petitioner and Sales Drivers and Dairy Employees Union, Local 166, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.' Case 31-RD-1060 June 30, 1988 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered objections to an election held May 22, 1987, and the hearing offi- cer's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The revised tally of ballots shows 28 for and 26 against the Union.2 The Board has reviewed the record in light of the exceptions and brief and has adopted the hear- ing officer's findings and recommendations only to the extent consistent with this Decision and Direc- tion of Second Election. The Board finds that the election must be set aside and a new election held. The Employer filed the following objection: During the day before the election, the Union, through its agents and supporters, gathered in front of the Employer's facility and engaged in and created the impression of intimidating sur- veillance with the use of a video camera in front of employees. By this and other conduct, the Union intimidated employees, interfered with the employees' free choice, and made a free and fair election impossible. The hearing officer recommended that the Em- ployer's objection be overruled and that a Certifi- cation of Representative be issued. We disagree. On the day before the election, representatives of the Union and other Teamsters' locals staged a rally for approximately 2 hours in front of the Em- ployer's premises. Lenny Moore, the Union's vice president, business agent, and organizer, testified that he organized the rally at which there were 11 union representatives present. Jim Santangelo, sec- retary-treasurer of another local and trustee of the Joint Council of Teamsters, brought and operated a video camera. Santangelo did not testify, and no 1 On November 2, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 Of the 57 eligible voters, 54 cast ballots The original tally of ballots showed 27 for and 26 against the Union with I determinative challenged ballot The parties then stipulated that the challenged voter was eligible and the challenge to his ballot should be overruled The challenged ballot was opened and counted and a revised tally issued June 18, 1987 other union official offered any legitimate justifica- tion for having the video camera at the rally. Four drivers in the bargaining unit testified that they saw a group outside the plant the day before the election. The drivers' testimonies reveal that several of the individuals in the group were wear- ing Teamsters jackets, that the drivers recognized Lenny Moore and Bob Isbell as union representa- tives but did not know the rest of the group, and that individuals handed out leaflets urging the driv- ers to support the Union. Two drivers specifically testified that they thought they were videotaped. According to their testimony, as they were exiting the Employer's premises, individuals approached their vehicles and handed them union leaflets. At the same time, the video camera appeared to have been pointed in their direction. Three drivers testified that they discussed the in- cident with other employees. Some drivers told other employees that their pictures had been taken. The Union had not provided the employees with any explanation for the videotaping, and the em- ployees questioned whether the purpose of the pic- ture taking was for future retaliation. Tom Murphy, a supervisor, testified that when he saw the union officials outside, he went out and spoke to them and observed someone videotaping him along with Moore and other union officials. Murphy also testified that he did not see any threatening or violent behavior. Summarizing the testimony, the hearing officer found that "it is undisputed that a Teamsters repre- sentative had a video camera at the Union rally." The hearing officer further found that because the camera appeared to be aimed at drivers, "at least two . . . drivers who testified at the hearing" be- lieved that they had been taped. The hearing officer concluded that the election need not be set aside because the videotaping did not create "an atmosphere of fear and coercion." The standard enunciated by the hearing officer is the standard applicable to conduct by employees or other third parties. When, as here, the allegedly ob- jectionable conduct is attributable directly to union officials, the proper test is whether the "conduct reasonably tends to interfere with the employees' free and uncoerced choice in the election."3 Applying the proper standard, we find that the election must be set aside. Here, it is undisputed that on the day before the election a union repre- sentative appeared to videotape at least two em- ployees as they exited the Employer's premises and 2 Baba's Place, Inc, 268 NLRB 868 (1984) Accord Bristol Textile Co, 277 NLRB 1637 (1986) 289 NLRB No. 94 PEPSI-COLA BOTTLING CO. 737 were handed union leaflets . No legitimate explana- tion for the videotaping was offered to the employ- ees at the rally, and none was proffered at the hearing. Under these circumstances, we find that the videotaping intruded on the employees' Section 7 right to refrain from any or all union activities, including the union rally then in progress. Absent any legitimate explanation from the Union, we find that employees could reasonably believe that the Union was contemplating some future reprisals against them. Clearly, such conduct would be in- timidating and would reasonably tend to interfere with employee free choice in the election . Further- more, the conduct cannot be dismissed as isolated or de minimis.4 The incident was disseminated among employees in the unit, and a change in only one vote would have altered the election's out- come. Accordingly, we find that the election held May 22, 1987, must be set aside and a new election held. [Direction of Second Election omitted from pub- lication.] 4 The cases cited by the hearing officer are distinguishable. Friendly Ice Cream Corp., 211 NLRB 1032 (1974), did not involve union conduct, but employee conduct, and it was decided under the third-party standard of whether an atmosphere of fear and coercion was created . In Interstate Cigar Co., 256 NLRB 496 (1981), the incidents in question were found to be isolated and did not involve photographing of unit employees.