Pepsi Cola Bottling Co. Of Petersburg, Inc.

578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pepsi Cola Bottling Company of Petersburg, Inc and Local Lodge 10, International Association of Machinists & Aerospace Workers, AFL- CIO, Petitioner Case 5-RC-12942 November 4 1988 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The National Labor Relations Board by a three member panel has considered objections to an election held September 30 1987 and the hearing officers report recommending disposition of them The election was conducted pursuant to a stipulat ed election agreement The tally of ballots show 50 for and 49 against the Petitioner with no chal lenged ballots The Board has reviewed the record in light of the exceptions and briefs and adopts the hearing of ficer s findings 1 and recommendations only to the extent consistent with this Decision and Direction of Second Election For the reasons set forth below contrary to the hearing officers recommen dation we find merit in the Employers Objection 1 The Employers objection alleges that for 15 to 20 minutes during the election approximately 15 to 20 off duty employees engaged in improper elec tioneenng which destroyed the laboratory condi tions of the election The essential facts are uncontroverted The polls were located in the lunchroom and were open from 6 15 to 7 45 a in and from 3 30 to 5 p in Ap proximately 15 minutes before commencement of the morning voting period a group of approxi mately 20 employees entered the Employers plant some of whom proceeded to the restroom area inside the locker room and the others to the time clock which is located outside the locker room Most if not all of the employees were wearing shirts and caps bearing the Union s logo and the shirts also bore the caption Geared For Action While walking through the plant the group chanted slogans cheered and clapped Between 6 05 and 6 10 a in , the group proceeded to the aisleway outside the lunchroom and formed lines on both sides of the aisleway which came within 10 to 15 feet of the lunchroom door While waiting for the polls to open the employees engaged in ' The Employer has excepted to some of the hearing officers credibil ity findings The Board s established policy is not to overrule a hearing officers credibility resolutions unless the clear preponderance 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 further cheering clapping and talking among themselves and with other employees passing by The employees made remarks such as we re going to take over were counting on you welcome to our house this is the day we ve been waiting for here comes one of our boys and other similar comments Several employees walked between the lines of the union supporters and were greeted by name or patted on the back as they walked by 2 When the polls opened at 6 15 a in a group of approximately 10 employees were already in line to vote After the polling began the voting line extended into the aisleway outside the lunchroom perpendicular to the lines of union sup porters Employees continued to filter through the lines of the union supporters after the polls opened The union supporters left their formation one or two at a time to enter the other line of employees waiting to vote After these individuals cast their ballots they returned to the lines of union support ers The group continued to clap chant cheer and to make remarks to employees passing between their lines until sometime between 6 30 and 6 40 am when two members of management John Burns and Charles Drogosch asked the group to leave the area if they had voted The group then left the plant The hearing officer concluded that the group of union supporters did not engage in objectionable conduct The hearing officer relied on the fact that the supporters were not union agents that the noise level inside the voting room was not so loud or obstructive as to impair the voter s ability to un derstand the Board agent s instructions or cast their ballot, and that the specific remarks made outside the lunchroom could -iot be heard by voters inside the room The hearing officer further found that the remarks made by the union supporters were not overtures to individuals to support the Peti tioner and thus did not constitute electioneering and that even if such statements represented elec tioneering the remarks were brief as opposed to sustained conversations and were not made to po tential voters within the described no electioneer ing zone while the polls were open Under the particular circumstances of this case although we agree that the employees were not agents of the Union 3 we find that the conduct of the union sup porters interfered with the conduct of the election and that the election should be set aside Critical to this finding is our finding contrary to the hearing officer that the union supporters en 2 The hearing officer found that it was not clear whether these em ployees were going to work or to vote 3 See United Builders Sapply Co 287 NLRB 1364 (1988) Member Jo hansen who dissented in United Builders concurs in this finding 291 NLRB No 93 PEPSI COLA BOTTLING CO 579 gaged in this conduct in an area encompassed within the no electioneering area The hearing offi cer, relying on the Board s decision in Westwood Horizons Hotel 270 NLRB 802 fn 14 (1984) found that the no electioneering zone in the absence of the Board agents designation was the lunch room where the polling actually took place and the area immediately outside the lunch room where employees lined up to vote after the polls opened at 6 15 a in ' Later in his report the hearing officer stated that the remarks by the union supporters were not made within the described no electioneer ing area It appears from these statements that the only portion of the aisleway outside the lunchroom considered by the hearing officer to be included in the no electioneering area was the area outside the doorway to the lunchroom where employees lined up to vote The hearing officer ignored however, the fact that in the immediately adjacent area of the aisleway in clear view of the other employees and within 10 to 15 feet of them the union sup porters were themselves waiting to vote albeit in different lines Thus, we find no logical or mean ingful distinction between these areas of the aisleway and we find that as employees waited to vote in both areas, both areas were encompassed within the no electioneering area 4 Under these circumstances we attach greater significance to the boisterous prounion conduct of the group of union supporters, comprising one fifth of the eligible voters This conduct continued una bated throughout the first 15 to 25 minutes of the election in front of employees in line to vote and its effects were magnified by the line formation of the union supporters which forced all employees walking down the aisleway, including those going to vote, to walk between the lines of the union sup porters and be subjected to their chants cheers and other antics In these circumstances especially when the election results were so close' 5 we do not view the election as reflecting the free choice of the employees See E A Nord Co 276 NLRB 1418 1425-1426 (1985) Accordingly we shall set * In this regard both NLRB Y Aaron Bros. Corp 563 F 2d 409 (9th Cir 1977) and Certainteed Corp v NLRB 714 F 2d 1042 (11th Cir 1983) on which our dissenting colleague relies are distinguishable In Aaron Bros the activity in question took place in an assembly area of undefined size from which voters entered the voting room to vote and the employers proffered evidence came from persons in the voting room who heard shouting outside by some unidentified employees but were unable to describe the relative locations of the shouters and arriving voters at whom they shouted In Certainteed the shouting was by pass ersby in a hallway outside the cafeteria in which the polling area was located and there was no indication that there was any line of voters in the hallway In neither case was there evidence of two lines that func honed simultaneously as lines of voters who fed into the main line imme diately outside the voting room and as a gauntlet through which the voters going to the main voting line had to pass 6 A change of one vote out of the 99 voters could have led to a differ ent result aside the election and direct that a new election be held [Direction of Second Election omitted from pub lication ] MEMBER CRACRAFT dissenting Contrary to my colleagues I would not set aside this election The hearing officer found and I agree, that the voting area was limited to the lunchroom where the polling actually took place and the area immediately outside the lunchroom where employees lined up to vote Here, the em ployees conduct took place in an area that had not been designated by the Board agent as a no elec tioneenng area No electioneering occurred in the voting area itself My colleagues rely on E A Nord Co, 276 NLRB 1418 1425-1426 (1985) in finding that be cause of the boisterous prounion conduct of the union supporters the election did not reflect the free choice of the employees However I find that case to be distinguishable from the instant case In Nord the conduct was much more extreme There employees had been released to vote ahead of schedule and large crowds formed in the voting area It was so crowded that people could hardly move Employees waiting to vote made mocking remarks about people whose ballots were chal lenged It was so noisy that the observers could not hear the names of people attempting to vote There was repeated heckling concerning challenges There was shouting chanting and cheering led by employees standing on a bench This occurred about 15 feet from where the voting booth was lo cated In the instant case the conduct was limited to clapping cheering and making remarks to em ployees on their way to vote The noise level inside the voting room was not so loud as to impair the voters ability to understand the Board agent s instructions or to cast their ballots and the specific remarks could not be heard inside the lunchroom I find that the facts of the instant case are closer to those in NLRB v Aaron Bros Corp 563 F 2d 409 (9th Cir 1977) than to those in Nord In Aaron Bros employees were waiting in an assembly area to enter another room to vote Employees shouted to arriving employees here comes so and so or come on man let s do it or words to that effect There were loud catcalls cheering, shouting and general raucousness The Board and the court held that such circumstances did not warrant setting aside the election See also Certainteed Corp v NLRB 714 F 2d 1042 (11th Cir 1983) in which an election was not set aside when employees told other employees as they entered the cafeteria to 580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vote that they should vote union or vote yes case when analyzed under the third party stand Others told employees to vote no and was not so coercive and disruptive as to re Under the circumstances I believe that the con quire setting aside the election Accordingly I duct engaged in by the prounion employees in this would issue a certification of representative