Mike Yurosek & Son, Inc

1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mike Yurosek & Son, Inc and General Teamsters & Food Processing Local 87, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , AFL-CIO, Petitioner Case 31-RC-6084 February 14, 1989 DECISION AND DIRECTION OF SECOND ELECTION BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS The National Labor Relations Board, by a three member panel, has considered objections to an election held December 17, 1986, and the hearing officer's report recommending disposition of them The election was conducted pursuant to the Acting Regional Director's Decision and Direction of Election The revised tally of ballots shows 292 for and 290 against the Petitioner, with 1 challenged ballot, an insufficient number to affect the results The Board has reviewed the record in light of the exceptions and brief and has adopted the hear- ing officer's findings 1 and recommendations only to the extent consistent with this Decision and Di- rection of Second Election The Employer contends that Western Confer- ence of Teamsters Representative Gunder Hansen, Petitioner's agent, engaged in surveillance by pho- tographing employees while they engaged in cam- paign activities at the front gate to the Employer's plant The hearing officer found that Hansen's con- duct was not objectionable We disagree 2 Virtually everyday during the campaign, Hansen took photographs with a small pocket camera of campaign activity, at the entrance gate, by both prounion and antiunion employees He testified that he took pictures (1) because the subjects wished to be photographed, and (2) to keep a record of an- tiunion activity should the Union decide later to file objections or unfair labor practices Hansen told antiunion activist Brogdon that "We've got it on film, we know who you guys are after the Union wins the election some of you may not be here "3 i The Employer has excepted to some of the hearing officers credibil ity findings The Board s established policy is not to overrule a hearing officer s credibility resolutions unless the clear preponderance of all rele vant evidence convinces us that they are incorrect Stretch Tex Co 118 NLRB 1359 1361 (1957) We find no basis for reversing the fmdtngs 2 Because we find merit in this objection we find it unnecessary to pass on the hearing officers findings with respect to the remaining objec tions 3 Brogdon s testimony on direct and cross-examination was consistent but vaned slightly as to the exact words used by Hansen The version credited by the hearing officer is a composite of these variations and is consistent with each of them The hearing officer recommended that the objec tion be overruled She found that in the absence of threatening or coercive acts indicating that the Union would punish antiunion campaigners, the filming of public campaign activity, even if it in cludes an occasional photograph of employees en- tering or leaving the gate, would not constitute im- permissible surveillance In Pepsi Cola Bottling Co, 289 NLRB 736 (1988), the Board found that the appearance of videotap ing by a union representative of at least two em- ployees at a rally the day before the election gave the employees the impression that the pictures would be used for future reprisals against them The Board noted that no legitimate explanation for the videotaping was offered to the employees at the rally, and that none was proffered at the hear- ing Under these circumstances the Board conclud- ed that the conduct of the union representative was intimidating and would reasonably tend to interfere with employee free choice in the election Similar- ly, in the instant proceeding the pictures of em ployees were taken by a union agent and, like Pepsi-Cola Bottling Co, no explanation was provid- ed to employees while pictures were being taken to assuage their fears that the pictures would be the basis for future reprisals 4 Further, Hansen's re- marks to Brogdon are arguably threatening, and certainly do nothing to assure employees that the pictures Hansen was taking would not be improp- erly used At the hearing Hansen attempted to explain that he took pictures to have evidence of antiunion sup- porter misconduct Contrary to the hearing offi cer's findings, we conclude that this explanation is belied by Hansen's giving away of many photo- graphs and the Union's acknowledgment that it did not know the location of the negatives Therefore, in the absence of a valid explanation, we find that Hansen's conduct in photographing employees was objectionable 5 Accordingly, we find that the election held on December 17, 1986, must be set aside and a new election held [Direction of Second Election omitted from pub- lication ] 4 In Interstate Cigar Co 256 NLRB 496 (1981) relied on by the hear ing officer the incidents in question were found to be isolated and did not involve photographing of unit employees 5 Member Higgins finds it unnecessary to rely on Pepsi Cola. As noted above while photographing antiunion activity Hansen commented to an tmnion activist Brogdon that we ve got it on film we know who you guys are after the Union wins the election some of you may not be here In Member Higgins view the photographing of antiunion employ ees accompanied by this statement could reasonably put employees in fear that the pictures would be used for future reprisals and was therefore objectionable 292 NLRB No 124