Bell Trans

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 280 (N.L.R.B. 1989)

280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bell Trans and United Steelworkers of America,
AFL-CIO, Petitioner. Case 28-RC-4687
November 21, 1989
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held Apnl 18, 1989, and the hearing offi-
cer's report recommending disposition of them
The election was conducted pursuant to a Stipulat-
ed Election Agreement The tally of ballots shows
128 for and 114 against the Petitioner, with 5 chal-
lenged ballots, an insufficient number to affect the
results
The Board has reviewed the record in light of
the exceptions and brief, has adopted the hearing
officer's findings' and recommendations, and finds
that a certification of representative should be
issued
In its objections, the Employer alleged, inter aim,
that before the election there existed a general at-
mosphere of fear and confusion that prevented a
free and untrammeled choice by employees in the
election The hearing officer recommended over-
ruling the Employer's objection We agree with the
hearing officer
The Employer's objection in this regard was
based on an incident between employees Guy
Wilson and Maury Weisman that occurred 9 days
before the election The hearing officer, based on
his credibility resolutions, found that Bitonti, the
Petitioner's district coordinator of organizing,
called a campaign strategy meeting According to
Bitonti, the meeting was only for those employees
perceived as being "100 percent" Union About 13
dnvers and Union Organizer Jerry Mongello met
in the lobby of the Park Hotel in Las Vegas
Among this group were Weisman, employee Brett
Ritter, and two other employees who were per-
ceived as not being "100 percent" Union Ritter is
a relative of the Employer's chief executives Weis-
man and Ritter asked Mongello if they could
attend the meeting Mongello, who was new to the
organizing campaign and unaware of the meeting's
'We agree with the hearing officer's conclusion that the Petitioner's
election observer, Peter Sarchna, did not engage in objectionable conduct
during the election by keeping a list containing only the names of voters
that he Intended to challenge See, e g, St Elizabeth Community Hospital
v NLRB, 708 F 2d 1436, 1443-1444 (9th Cir 1983), and cases cited there
Having adopted this conclusion, we find It unnecessary to rely on the
hearing officer's finding that assuming, arguendo, Sardma maintained an
unauthorized list of voters, then Sarchna's activity was trifling and, there-
fore, unobjectionable
purpose, replied that they could if it were a general
meeting Mongello then went to a telephone to call
Bitonti
According to Ritter's credited testimony, after
Mongello left to find a telephone, Wilson walked
up to Weisman, shouted obscenities, threatened to
kill Weisman because he had brought Ritter to the
meeting, and then slapped Weisman in the face
Weisman responded with obscenities and threats of
his own Within 15 seconds, other drivers stepped
in and broke up the altercation Wilson and the in-
vited drivers then went to the strategy meeting,
while Weisman, Ritter, and the other two uninvit-
ed drivers remained in the lobby
According to Mongello, he did not witness the
incident, and he was unaware at the time that it
had occurred After his return from making his
telephone call, Mongello remained in the lobby
with Weisman, Ritter, and the other uninvited driv-
ers, and they discussed, at length, questions that the
employees had about the Petitioner and unions in
general
The hearing officer found that the Employer
failed to establish that Wilson was an agent of the
Petitioner and thus the misconduct must be evalu-
ated under the third party standard of whether the
misconduct created an atmosphere of fear and con-
fusion We agree
Further, the hearing officer noted that the alter-
cation occurred 9 days before the election in the
lobby of the hotel and not at the Employer's facili-
ty At most, a total of 13 employees out of 292 eli-
gible voters viewed the incident After the inci-
dent, Weisman remained in the hotel lobby with
the other employees and Mongello to discuss the
Petitioner Finding that the single isolated incident
at issue here was not so aggravated as to create a
general atmosphere of fear and confusion, the hear-
ing officer recommended overruling the Employ-
er's objection
We find—and the Employer does not contend
otherwise—that the hearing officer correctly deter-
mined that the conduct in question was not attrib-
utable to an agent of the Union and that, therefore,
it is governed by the standard for determining
whether the election should be overturned on. the
basis of third party conduct, i e, "whether the mis-
conduct was so aggravated as to create a general
atmosphere of fear and reprisal rendering a free
election impossible" Westwood Horizons Hotel, 270
NLRB 802, 803 (1984)
Recently, in Picoma Industries, 296 NLRB 498
(1989), the Board found that a series of substantial
threats made by union supporters threatening harm,
physical injury, and property damage to known or
suspected antiunion employees created such an at-
297 NLRB No 38
BELL TRANS 281
mosphere In Picoma, it was significant that the
series of threats occurred from 2 weeks up to 2
days before an election in which the union pre-
vailed by only a 2-vote margin Further, the threats
were disseminated to at least 25 of 140 employees
in the unit
, This case differs from Picoma in significant re-
spects Here, there was a single incident—not a
senes of incidents The Wilson-Weisman incident
was an isolated and brief 15-second altercation It
occurred in a hotel lobby and not at the Employ-
er's facility Wilson's statement was directed only
at Weisman Unlike the threats in Ptcoma, the
threat here was not broad-based and directed at
any or all antiunion employees Only about 13 em-
ployees out of a 292-voter unit viewed the incident,
and there is little evidence that that information
cbncermng the altercation was disseminated to
other employees 2
Further, the Petitioner's representatives were not
present during, nor did they condone, the incident
2 According to Ritter's testimony, he spoke with several of the 60 driv-
ers employed on his shift about the Wilson-Weisman altercation When
pressed, however, Ritter could recall specifically talking to only two
other drivers about the incident We find that this limited evidence does
not support the Employer's contention that news of this incident was
widely disseminated
Indeed, when Mongello returned' to the group,
Weisman did not refer to the altercation Clearly,
Weisman did not lay the incident at the Petitioner's
door Instead, Weisman and the other uninvited
drivers proceeded to discuss with Mongello ques-
tions about the Petitioner and unions in general
Given these facts, it is reasonable to conclude that
employees present would view the Wilson-Weis-
man incident as a personal dispute between the two
men Thus, there would not generally exist among
employees any atmosphere of fear and confusion
that would render a free choice in the election im-
possible We, therefore, overrule the Employer's
objection
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for United Steelworkers of
America, AFL-CIO, CLC and that it is the exclu-
sive collective-bargaining representative of the em-
ployees in the following appropriate unit
All limousine and bus drivers employed by the
Employer at its Industrial Road, Las Vegas,
Nevada, location, but excluding all other em-
ployees, office clerical employees, guards and
supervisors as defined in the Act
,