Baja's Place

National Labor Relations Board - Board Decisions

Feb 13, 1984

268 N.L.R.B. 868 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baja's Place, Inc. and Hotel, Motel, Restaurant Em-
ployees, Cooks and Bartenders Union, Local 24,
AFL-CIO, Petitioner. Case 7-RC-16160
13 February 1984
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Pursuant to authority granted it under Section
3(b) of the National Labor Relations Act, as
amended, a three-member panel has considered ob-
jections to an election held 9 January 1981,1 and
the hearing officer's report recommending disposi-
tion of same. The Board has reviewed the record
in light of the exceptions and briefs, and hereby
adopts the hearing officer's findings and recom-
mendations only to the extent consistent herewith.
The hearing officer recommended, inter alia, that
the Employer's Objection 1-A be overruled. This
objection alleges that, during the campaign, a unit
member was threatened with physical harm and
economic loss if he did not cease opposing the
Union. We disagree with the hearing officer's rec-
ommendation.
The testimony shows that Dennis Tap, at all
times material, has been a business representative of
the Petitioner, and he conducted the organizational
campaign among the Employer's employees. On 30
December 1980, approximately 10 days before the
election, Tap mailed a letter informing unit em-
ployees of an upcoming union meeting. The notice
was not sent to employee Gary Wood. Rather, on
the Petitioner's stationery, Tap sent Wood a letter
which stated: "f- you a--." Tap asserted that
he sent this message to Wood because of his belief
that Wood was in some way involved in the dis-
charge of an employee organizer.
The hearing officer found that Wood showed the
message to John Baja, the Employer's president,
and to four or five fellow employees, who in turn
showed it to other employees. On 6 January 1981,
3 days before the election, Wood telephoned Tap
and asked, "what the f- is this that I received?"
Tap stated that Wood knew what it was for. Wood
continued saying he did not know what it was for.
Tap stated that Wood knew why and that Tap
would get him; that he would get Wood's job.
Wood reported the conversation to the Employer
and to several other employees.
With regard to this objection, the hearing officer
concluded that the message Tap sent to Wood did
I The election was conducted pursuant to a Stipulated Election Agree-
ment. The revised tally was: 21 for and 17 against the Petitioner, with 3
challenged ballots, an insufficient number to affect the results.
268 NLRB No. 117
not itself represent a threat of physical harm. He
further concluded that Tap's statements to Wood
to the effect that Tap would get Wood and that
Tap would get Wood's job do not warrant setting
the election aside. In this regard, the hearing offi-
cer was of the view that Tap's comments to Wood
were "personal in nature" and "unrelated to the
election." The hearing officer also regarded the in-
cident as isolated and stated that it could not have
created a general atmosphere of fear and confusion,
warranting the setting aside of the election.
We disagree with the hearing officer's reasoning
and his ultimate conclusion. Contrary to the hear-
ing officer, the facts plainly reveal that Tap's state-
ments to Wood were related to the election cam-
paign. Thus, the evidence shows that Tap was an
official of the Petitioner conducting the election
campaign, and that the obscene message Wood re-
ceived was sent by Tap on Petitioner's stationery
in lieu of organizational material received by other
employees. Further, Tap conceded that his conduct
toward Wood was based on Tap's belief that Wood
had been involved in effecting the discharge of a
prounion employee.
In addition, the hearing officer erred in applying
the third-party standard of whether the conduct
created a general atmosphere of fear and confusion.
Because the threats in issue were made by an offi-
cial of the Petitioner, rather than by a rank-and-file
employee, the proper test is whether the conduct
reasonably tends to interfere with the employees'
free and uncoerced choice in the election. Under
this standard, Tap's threats to "get Wood's job"
and "to get" Wood are clearly coercive and objec-
tionable, as they can reasonably be interpreted as
threats of economic retaliation, physical harm, and
other unspecified reprisals. Initially, we note that
the threat "to get Wood's job" was a direct threat
to take economic reprisals against Wood and to
seek his discharge, and the threat "to get" Wood
could reasonably be viewed as a threat of physical
harm and of other unspecified reprisals. 2
Further, as set forth in the hearing officer's
report, Wood discussed Tap's threats with John
Baja, the Employer's president, and Baja attempted
to relieve Wood's fears by pointing out that Tap
was not that strong and that he did not have every
bar locked up. Wood was employed as a bartender
by the Employer, and Petitioner represented a
number of bar and lounge employees in the area. In
such a context, it is clear that Tap exercised a sig-
nificant degree of influence over a substantial
a We note that Tap's conduct in sending the obscene message serves to
confirm our conclusion and to emphasize that Tap's expressed intent to
get Wood's job and to get Wood cannot be dismissed as offhand or
casual remarks.
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BAJA'S PLACE
number of jobs in the industry and that Tap's
threats "to get Wood's job" and "to get" Wood
were not idle threats made in a vacuum, but were
threats made by a union official who wielded sub-
stantial influence in the local industry.
Finally, we disagree with the hearing officer that
the incident was "isolated" merely because it in-
volved only one employee. As set forth above,
Wood repeated Tap's threats to Baja and a number
of other employees. Thus, Tap's threats of econom-
ic reprisals, physical harm, and other unspecified
reprisals were disseminated among the employee
work force.
For these reasons, we find, contrary to the hear-
ing officer, that the conduct of Tap, an official of
the Petitioner, warrants setting aside the election
and directing a second election.
[Direction of Second Election and Excelsior
paragraph omitted from publication.]
869