Comcast Cablevision of New Haven

National Labor Relations Board - Board Decisions

May 22, 1998

325 N.L.R.B. 833 (N.L.R.B. 1998)

833
325 NLRB No. 155
COMCAST CABLEVISION OF NEW HAVEN
1 The pertinent portion of the hearing officer’s report is attached
as an Appendix.
2 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless the clear preponder-
ance 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.
We agree with the hearing officer’s finding that the Union’s con-
duct in distributing mock ballots does not warrant setting aside the
election. The mock ballot, distributed at a union demonstration, and
containing numerous exhortations to vote for the Union for various
reasons, was clearly union propaganda, and would not reasonably
mislead employees into believing that the Board favored the Union.
In addition, the posted official election notice plainly states: ‘‘This
is the only official notice of this election and must not be defaced
by anyone. Any markings that you may see on any sample ballot
or anywhere on this notice have been made by someone other than
the National Labor Relations Board, and have not been put there by
the National Labor Relations Board. The National Labor Relations
Board is an Agency of the United States Government, and does not
endorse any choice in the election.’’ (Emphasis added.) This pro-
vides further support for our conclusion that employees would not
reasonably believe that the mock ballot emanated from the Board.
See Brookville Healthcare Center, 312 NLRB 594 (1993).
In adopting the hearing officer’s recommendation to overrule Ob-
jection 3, Chairman Gould agrees with the hearing officer that the
Board’s rule in Peerless Plywood Co., 107 NLRB 427 (1954), is not
applicable in this case. In his view, the Peerless rule applies only
to election speeches given by an employer on company time to
massed assemblies of employees since the interference with a free
election that results from a captive audience speech is due primarily
to employees’ complete dependence upon their jobs as their means
of livelihood and economic existence. Since a union does not wield
such economic control, Chairman Gould would not apply Peerless
Plywood to union campaign speech.
Member Liebman finds it unnecessary to reach the issue, discussed
by the Chairman, of whether the Board should no longer apply the
Peerless Plywood rule to unions, because she agrees with the hearing
officer, for the reasons stated by him, that under current Board
precedent the Union’s ‘‘brief urging of voters to vote for the Union’’
was not prohibited by the rule. In addition, Member Liebman em-
phasizes that the employees who were the audience of the Union’s
appeal were not captive, but were free to come and go as they
pleased. Accordingly, Member Liebman joins her colleagues in over-
ruling Objection 3.
In adopting the hearing officer’s recommendation to overrule Ob-
jection 6, concerning the distribution of mock ballots, Member
Brame finds it unnecessary to rely on the disclaimer language con-
tained in the official posted Board election notice and the cases cited
by the hearing officer on this point. Additionally, in adopting the
hearing officer’s recommendation to overrule Objection 3, Member
Brame finds it unnecessary to rely on Bro-Tech Corp., 315 NLRB
1014 (1994), enf. denied and remanded 105 F.3d 890 (3d Cir. 1997)
3 We agree with the hearing officer that there is no merit in the
Employer’s objections relating to the Union-sponsored demonstration
that took place on the morning of the election. However, we find
it unnecessary to rely on the hearing officer’s discussions of whether
the Union’s conduct constituted picketing and of whether this case
involves a labor dispute. Rather, in adopting the hearing officer’s
recommendation to overrule these objections, we do so on the
ground that the Union’s conduct did not reasonably tend to interfere
with the employees’ free and uncoerced choice in the election.
Comcast Cablevision of New Haven, Inc. and Timo-
thy W. Costa, Petitioner and Connecticut
Union of Telephone Workers, Incorporated,
Local 502. Case 34–RD–225
May 22, 1998
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held September 17, 1997, and the hearing officer’s re-
port recommending disposition of them.1 The election
was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 20 for and 18
against the Union, with no challenged ballots.
The Board has reviewed the record in light of the
exceptions and brief, has adopted the hearing officer’s
findings2 and recommendations,3 and finds that a cer-
tification of representative should be issued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Connecticut Union of Telephone
Workers, Incorporated, Local 502, and that it is the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time Installers, In-
staller Technicians, Service Technicians, Line
Technicians, Dispatchers, Inventory Control
Clerk(s), Construction Ground Person, Construc-
tion Line Person and Warehouse Person(s) at its
New Haven, Connecticut facility; but excluding
all office clerical employees, all other employees
and guards, professional employees and super-
visors as defined in the Act.
APPENDIX
HEARING OFFICER’S REPORT AND
RECOMMENDATIONS ON OBJECTIONS
. . . .
The objections all relate to a Union-sponsored demonstra-
tion taking place on the morning of the election held inside
the Employer’s facility located on Whalley Avenue in New
Haven. More particularly, the conduct at issue for the most
part took place at the employee entrance located in the back
of the facility on Elm Street, which is a two lane-one way
road. Orchard Street also borders the facility on one side, and
runs between Elm Street and Whalley Avenue. There is a
large parking area for employees in the back of Elm Street,
as well as parking for customers off Orchard Street. On the
other side of the facility are buildings and parking areas,
which are bordered by Dwight Street, and which also runs
between Whalley Avenue and Elm Street. At the time of the
election, most unit employees drove Employer service vehi-
cles and vans to and from work, and parked these vehicles
in the back parking lot off Elm Street. There are three gates
into the back parking lot. The middle one is the main gate
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834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and is usually utilized by the employees. There is a storage
building between the main gate and the gate located towards
Orchard Street. While these gates were open on the day of
the election, the third gate located towards Dwight Street was
locked. The back parking lot has an area for employees to
sit which has a picnic table. Inside the back of the Employ-
er’s building itself is a garage with an area for parking and
a warehouse area. There is a garage door, which was open
on the morning of the election, leading into the garage. The
main gate to the back parking lot is clearly visible from the
garage door. Immediately inside that garage door is the con-
verter control area, which has a counter with windows and
a sliding door to the left of the garage entrance. Unit em-
ployees routinely pick up equipment and work orders in that
area, and then leave the facility through the back parking lot
to perform their service calls.
Starting time for the great majority of unit employees is
8:00 a.m. while a handful of employees start at either 6:30
or 7:00 a.m. It is undisputed that beginning about 6:30 a.m.
on the day of the election various union officers and Execu-
tive Board members congregated in a demonstration of sup-
port for the Union at the main entrance to the back parking
lot. Demonstrators stayed until the polling period ended at
11:00 a.m. Some of the demonstrators parked on the employ-
er’s side at Elm Street, despite a no parking sign. The num-
ber of demonstrators grew as the morning wore on. There
were conflicting estimates as to how many participated with
union witnesses tending to give estimates as low as 12–15,
while some Employer witnesses estimated that as many as 30
were at the demonstration. I find about 20–25 individuals
participated in the demonstration. Two unit members, at least
one of whom was a shop steward, were at the demonstration
before they had to report to work at 8:00 a.m. Many of the
demonstrators either wore or held placards which read
‘‘VOTE YES, CUTW.’’ They distributed pins which read
‘‘VOTE YES CUTW UNION.’’ They also distributed copies
of a mock ballot marked yes, a copy of which is attached
to this report. The demonstrators milled about in small
groups at the sides of the main entrance, and on the side-
walk. At times some demonstrators would walk back and
across the main entrance itself. When some trucks traveled
through the other unlocked gate, a handful of demonstrators
went to stand for some time at that entrance as well.
The record also shows that some vehicles stopped at the
back entrances on their way to perform service calls or on
their return to the facility after finishing such calls. The par-
ties dispute whether any vehicles were forced to stop by the
demonstrators. Once again, some union witnesses tended to
downplay the conduct of demonstrators at the back entrances,
while some employer witnesses tended to greatly exaggerate
what occurred.
Employee David Roy Guthrie, Jr. testified that when he ar-
rived at the back parking lot at about 7:30–7:45 a.m., there
were 15–20 demonstrators in front of the main gate. Em-
ployee James Canty was driving behind him. Guthrie stopped
and rolled up his window, while demonstrators came out to
him and loudly said, ‘‘Vote yes,’’ and ‘‘Please vote yes.’’
They attempted to hand him a union button and a mock bal-
lot, but he kept his window closed. The demonstrators moved
out of his way and he passed through after about a minute
and entered the facility. He did not see whether Canty
stopped or not.
Employee Roberto Rivera testified that he also arrived at
about 7:30–7:45 a.m. at the main back gate and he saw about
12–15 demonstrators. He testified that he had to stop because
a few people were in front of the gate. He did not see any
other unit employee there. He rolled down his window and
one demonstrator walked up to him and said, ‘‘You’re going
to vote yes,’’ and tried to hand him a union pin and a mock
ballot, and dropped a pin into his lap. At that point Rivera
drove through, having stopped for about a minute, and en-
tered the facility.
On his way to work that morning, employee Dan Bowee
heard over the radio someone say, ‘‘I thought we weren’t
going to be bothered.’’ When he arrived at about 7:30–7:40
a.m., he saw unit employee Phil Craven stopped in the en-
trance to the main back gate talking to demonstrators. Bowee
honked his horn, and Craven then moved forward. Bowee
followed him into the parking lot without stopping. When
some employees went inside the facility they spoke to each
other about the demonstrators.
About 8:15–8:25 a.m., after picking up his orders, Guthrie
drove back out the main entrance. As he went to leave, an-
other employee leaving in a company truck had stopped at
the gate, and was talking to the demonstrators at the main
back gate. When that employee left, Guthrie followed him
out without incident. Guthrie returned about 9:30 a.m. Dem-
onstrators were walking in front of the main back gate and
Guthrie stopped. One demonstrator with a pony-tail pointed
at him and said, ‘‘vote yes.’’ A few others said, ‘‘vote yes,’’
and he then drove through after about 30 seconds. The pony-
tailed demonstrator watched him drive up the driveway.
Rivera also left the facility at about 8:15–8:30 a.m., but
drove through the other unlocked back gate. A man and a
woman were there, and the man tried to stop and speak to
him, but Rivera kept his window up, waved him off, and
took off without incident. He returned about 10:30–10:45
a.m. through the same gate, and no demonstrator was there.
He estimated that about 25–30 demonstrators were at the
main gate, and he saw a pickup truck was across the street
where a couple of demonstrators were handing out pam-
phlets.
Bowee also left the facility that morning, apparently with-
out incident. When he returned at about 10:30 a.m., about
10–15 demonstrators were at the main back gate, and one
stood in front of his truck. He stopped, and about four dem-
onstrators spoke to him. Two demonstrators asked why he
wasn’t wearing a pin, and he responded that no one gave
him one, and he did not want one. He was handed one any-
way. He was told by a demonstrator that the only reason
‘‘Larry’’ was there at work was because of the Union, refer-
ring to a previously dismissed but reinstated employee. At
that point he was let through.
Installation Supervisor John Simeone testified that he ar-
rived at the facility at about 6:30 a.m., entering from
Whalley Avenue. After picking up work orders in the dis-
patch area, he proceeded to the garage, and observed dem-
onstrators at the back gate. He spent most of the morning in
the garage area because he wanted to avoid the studio area
where the election was being held. He claimed that he ob-
served demonstrators block the back entrance and stop every
truck that came through and then converge on the driver and
passenger side of each truck, speak to the drivers and hand
literature into the trucks. He claimed that each truck entering
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835COMCAST CABLEVISION OF NEW HAVEN
the facility was stopped in the same fashion for about 1–2
minutes. He testified that he observed about 10–15 trucks
stopped in this fashion between 6:30 a.m. and 9:30 a.m., and
some others between 10:30 a.m. and 11:00 a.m. Although he
did not testify about exiting trucks in his direct testimony,
he later testified he saw about 10 service trucks stopped on
the way out in a similar fashion. He admitted that he could
not hear what was being said at the back entrances from the
garage door.
Simeone testified that he personally interacted with the
demonstrators twice. He left through the back gate at about
9:30 a.m. in an employer vehicle with another supervisor,
and was asked, ‘‘What are you guys doing here?’’ He asked
the demonstrators to move so he could leave, which they did,
and someone told him that the Union was going to win as
he left.
About 10:45 a.m., after he had returned through a different
entrance, Simeone walked alone out of the main entrance in
the back lot with a couple of the mock ballots in his hand.
He said, ‘‘You guys still here?’’ and a demonstrator re-
sponded, ‘‘We’ll be here a month from now if we have to
be here.’’ Someone told him to get out of there, and asked
what he wanted. He said he was just curious. The demonstra-
tors stood close to him and around him. He asked if they had
any other literature, and was told no, that was all they had.
Although he claimed the demonstrators were ‘‘very angry,
very hostile’’ there is no evidence in the record of any
threatening statement or conduct by the demonstrators to
Simeone, nor any evidence that any employee witnessed him
meeting with the demonstrators or heard what was said in
their conversation.
Human Resource Director Pamela Alvino testified that she
arrived at the facility shortly before 8:00 a.m. She claims that
she drove up Elm Street, as she normally does to enter
through the entrance to the back parking lot, and saw a large
number of cars parked, and about 20–25 people around and
in front of the main gate. She first claimed that she tried to
veer off the road because of the congestion, which was back-
ing up traffic. She then pulled into the main gate but could
not get through because of the demonstrators, and stopped on
the sidewalk. She testified that ‘‘hostile’’ demonstrators con-
verged on her vehicle telling her to vote yes. She was there
30–45 seconds, and when they realized she was not a unit
employee, she was then allowed through.
Although Alvino first claimed that traffic was backing up
because of the demonstration when she arrived, her testi-
mony changed on cross-examination. She then admitted that
there were only two or three cars in front of her on Elm
Street when she pulled up to the gate, and they proceeded
unimpeded down to Orchard Street. No car was backed up
in front of her entering the main entrance. There was, there-
fore, no basis for her to claim that traffic was backed up on
Elm Street when she arrived. I found Alvino prone to greatly
exaggerate things in her testimony, and she became argumen-
tative when cross-examined about details.
Upon entering the parking lot she drove her vehicle into
the garage, where she stood for 20 minutes and during that
period she observed two trucks stop at the main entrance,
and demonstrators handing literature to the drivers. She
claimed that she went to her office after about 20 minutes.
About 8:50 a.m., on her way to the preelection conference,
she observed vehicles entering the back gate and she saw one
truck stopped by the demonstrators for about 30 seconds. Al-
though she claimed to have observed the demonstrators for
about 50–60 percent of the time she was present that morn-
ing up until the election ended at 11:00 a.m., she did not tes-
tify to seeing any other trucks stopped at the back gate.
The union witnesses uniformly testified that they did not
witness anyone being forced to stop. Rather, they hoped that
drivers would stop and speak with them, but if not, they
would let the trucks through. Moreover, if the demonstrators
realized the individual stopped was either a contractor or a
management person, they would let them pass. Although I
find that both Alvino and Simeone tended to exaggerate in
their testimony, I also find that various union witnesses tend-
ed to downplay the significance of the demonstrators causing
vehicles to stop by virtue of their presence in the entrances
to the back parking lot. I credit the testimony that some indi-
viduals, including Alvino, stopped in the back entrances be-
cause they were afraid they might hit a demonstrator. While
it appears that some employees engaged in conversation with
the demonstrators, I find that the evidence in the record does
not show that anyone was forced to stop for any time longer
than it took to be given a pin and a leaflet and to be encour-
aged to vote yes. I do not credit Simeone’s testimony that
he saw about 15 vehicles forcibly stopped as they entered the
back lot, and about 10 forcibly stopped as they exited. I do
find, however, that the conduct at the demonstration was
clearly visible to virtually everyone in the bargaining unit,
and was the subject of discussion inside the facility. Further,
there is no evidence that the demonstrators attempted to pre-
vent anyone from entering the facility, or to prevent them
from leaving. There is no evidence of any threatening or co-
ercive statements being made to employees when they
stopped.
Alvino also testified that chanting from the demonstrators
could be heard inside the building, but no one else testified
to that effect and the one employee who was questioned
about it, Bowee, who was an Employer-called witness, de-
nied he could hear inside the building what was taking place
at the demonstration line. When pressed for details as to
what she heard, Alvino admitted she could not discern what
was being said outside, and described it simply as a ‘‘swell-
ing of sound’’ from the demonstration line. I do not credit
Alvino in this regard.
About 8:15 a.m. on the day of the election, approximately
7–8 SNET (Southern New England Telephone) trucks drove
by the demonstration. The Union represents SNET workers.
The SNET drivers shouted words of support, and honked
horns, and then drove down Elm Street. Later in the morning
a couple more SNET trucks came by, and one dropped off
coffee for the demonstrators. Also at some point in the morn-
ing a number of New Haven city trucks rolled by and
honked their horns in support. While there was some specu-
lative evidence from one witness that one of the SNET driv-
ers might have been a union official of some kind, the record
does not establish that. It is clear, however, that the Union
had put out a notice of the demonstration on the union
newsline for interested members. The record also makes
clear that most, if not all, of the demonstrators at the en-
trances on Elm Street held some kind of union position, and
that some worked for SNET as well.
While Simeone and Human Resources Director Pam
Alvino claimed that they could hear the trucks circling sev-
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836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
eral times around the facility honking horns, and that the
horns could be heard inside the building, no employee testi-
fied to that effect. Moreover, Bowee testified that he did not
hear the horns honking inside.
Alvino also gave exaggerated numbers for the number of
SNET trucks involved, and claimed that as many as 20 cir-
cled the building three times. No other witness supported her
testimony. I do not credit her version of events with regard
to the SNET trucks, except to the extent that she saw some
trucks, whether SNET trucks or city trucks, on Whalley Ave-
nue pass by the front entrance and honk.
There is no evidence in the record that anyone engaged in
misconduct in the voting area, or that employees could hear
or see anything related to the union demonstrators in the vot-
ing area or immediately outside it, during the election. Al-
though Simeone and Alvino testified that they could see the
demonstration from the garage entrance, there is no evidence
that anyone in or near the studio could see or hear the dem-
onstration. In this regard, a wall of approximately 15 feet
runs past the converter control area. which is located just in-
side the garage door, until it reaches a hallway on the left,
which is approximately 20–25 feet from the garage door.
Several feet into that hallway there is a door on the right
which leads into another hallway. Several feet past that door
is another door which leads directly into a soundproof studio
wherein the election was held. This entrance was used for
the election. On the opposite side of that studio entrance is
another entrance into the studio, which could be reached by
entering the second hallway, but which entrance was not
used for the election, apparently because there are offices on
that side of the building. The record is devoid of any evi-
dence that the Union in any way violated a designated no
electioneering area. The record does not indicate that there
was a specifically designated ‘‘no electioneering’’ area, but
I infer from Simeone and Alvino’s testimony that they con-
sidered the area outside the studio entrance to be an area to
stay away from during the election. Simeone testified that he
specifically stayed away from the voting area because of the
election. Neither one knew where employees would have
lined up waiting to vote, if they did so. Thus, not only is
there no testimony in the record showing that any employee
could see or hear anything with regard to the demonstration
from the voting area, but the testimony as to where the
soundproof studio is located would appear to make it impos-
sible that anything could be seen, and improbable that any-
thing could be heard.
In cases involving alleged misconduct by union agents, the
Board determines whether their conduct ‘‘reasonably tends to
interfere with the employees’ free and uncoerced choice in
the election’’ by evaluating the following factors:
(1) the number of incidents of misconduct; (2) the se-
verity of the incidents and whether they were likely to
cause fear among the employees in the bargaining unit;
(3) the number of employees in the bargaining unit sub-
jected to the misconduct; (4) the proximity of the mis-
conduct to the election date; (5) the degree of persist-
ence of the misconduct in the minds of the bargaining
unit employees; (6) the extent of dissemination of the
misconduct among the bargaining unit employees; (7)
the effect, if any, of misconduct by the opposing party
in canceling out the effect of the original misconduct;
(8) the closeness of the final vote; and (9) the degree
to which the misconduct can be attributed to the party.
Phillips Chrysler Plymouth, Inc., 304 NLRB 16 (1991), cit-
ing Baja’s Place, 268 NLRB 868 (1984) and Avis Rent-A-
Car System, 280 NLRB 580, 581 (1986).
The record makes clear, and I so find, that any conduct
which may have taken place at the demonstration line on
Elm Street is attributable to the Union. It is clear that most,
if not all, of the unit employees passed through the entrances
to the back lot either shortly before the election period, or
during the election period, and that some of these employees
stopped at the entrance because of the presence of the dem-
onstrators. Accordingly, assuming arguendo that the dem-
onstration itself constituted misconduct, then virtually the en-
tire unit was aware of it the morning of the election.
The objections are, for the most part, interrelated. The Em-
ployer’s main argument is that the Union effectively put up
a picket line, just before and during the election, and that a
picket line is inherently coercive, and therefore the picketing
destroyed the laboratory condition required for a free and fair
election. However, the notion that holding an election while
picketing is occurring at the election site is objectionable,
without more, has no merit. Noesting Pin Ticket Co., Inc.,
214 NLRB 987, 991 fn. 23 (1974); Korber Hats, Inc., 122
NLRB 1000, 1001 (1959).
It also argues that the Union engaged not just in picketing,
but ‘‘mass picketing’’ which was coercive and restrained em-
ployees entering and leaving. With regard to the claim that
the Union engaged in mass picketing or picket line mis-
conduct, which would arguably violate Section 8(b)(1)(A),
the Employer chose not to file an unfair labor practice
charge. Despite the lack of a charge, however, it is appro-
priate to consider whether the Union’s conduct restrained or
coerced employees to such a degree as to make a free elec-
tion impossible. ARA Living Centers Co., 300 NLRB 888
(1990); Holt Bros., 146 NLRB 383, 384 (1964).
There is a question as to whether the Union’s conduct at
the back gates, constituted picketing as ordinarily understood.
in this regard, the evidence shows that approximately 20–25
demonstrators milled about the back entrances to the facility,
wore and held placards, and stopped employee vehicles to
distribute leaflets and pins. However, conduct is normally
only considered picketing in the context of a labor dispute
of some kind. In Mine Workers, District 12 (Truax-Traer
Coal), 177 NLRB 213 (1969), the administrative law judge
grappled with the issue of what kind of conduct actually con-
stitutes picketing within the meaning of the Act. After noting
that the Act itself does not define picketing, the judge
searched through historical definitions and determined that:
The purpose of picketing in labor disputes is to convey
a message which is usually intended to influence the
conduct of certain persons to stay away from work or
to boycott a product or business, and is frequently ac-
complished, as was done herein, by posting individuals
at the approaches to a place of work. Id at 218.
The Board recently cited this definition with approval in
Mine Workers (New Beckley Mining), 304 NLRB 71, 72 fn.
12 (1991).
Furthermore, the Board has noted that ‘‘mass picketing’’
is not defined by the number of picketers, but rather by the
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837COMCAST CABLEVISION OF NEW HAVEN
2 However, one distinguishing factor in that case was there was no
finding that the union was responsible for the demonstration.
conduct of the picketers. Instead of regulating the number of
picketers, the Board’s function is:
limited to determining whether picketing as conducted
in a given situation, whether or not accompanied by vi-
olence, ‘‘restrained’’ or ‘‘coerced’’ employees in the
exercise of their rights guaranteed under the Act, and,
if so, to enjoin such conduct. In these circumstances,
the number of pickets has relevance only as it tends to
establish the potential or calculated restraining or coer-
cive effect of massed pickets to bar nonstriking em-
ployees from entering or leaving the plant.
When a Union is engaged in picketing to impede or pre-
vent access to a jobsite, even if the actual delay is of short
duration, then it can violate Section 8(b)(1)(A). Sheet Metal
Workers, Local 19 (Delcard Associates), 316 NLRB 426,
431 (1995); Carpenters (Reeves, Inc.), 281 NLRB 493, 498
(1986); Shopmen’s Local Union No. 455, 243 NLRB 340,
346, 348 (1979); Metal Polishers Buffers, Int’l. Local 67,
200 NLRB 335, 336 (1972); Lithographers, Local 223, 193
NLRB 11, 15, 20 (1971). In all of these cases, however,
there was an ongoing labor dispute, and there were various
acts of coercion besides a delay of short duration in entering
or leaving the jobsite, unlike this case where the Union did
not engage in any other coerclve acts or threats. Further, the
purpose of the picketing in each case was to disrupt the em-
ployer’s operations and encourage employees to respect the
picket line. The conduct was unlawful because even if the
delays were of short duration, employees were restrained and
coerced in their right to refrain from joining the strike or as-
sisting labor organizations. Carpenters, (Reeves, Inc.), supra
at 498; Metal Polishers, Buffers Int’l. Local 67, supra at 336;
and Lithographers, Local 223, supra at 19, 20.
Recently, in Electrical Workers IBEW Local 3 (Cable-
vision), 312 NLRB 487 (1993), the Board addressed mass
picketing in the context of an organizational campaign. In
that case, where no strike was occurring, the union staged a
large demonstration at the employer’s facility, with 100–150
demonstrators and at least one demonstrator carrying a union
placard. Demonstrators yelled at employees as they tried to
enter and leave various entrances, attempted to hand lit-
erature to drivers, and threw pamphlets into trucks. The
union also caused a number of nonemployer owned trucks to
drive ‘‘very slowly’’ around the facility ‘‘as if to impede the
progress’’ of the 17 employer’s returning trucks. Demonstra-
tors blocked a van and did not move, and forced the driver
to ‘‘inch up’’ slowly through a crowd. Demonstrators told
some employees that those employees who did not sign a
card ‘‘would be remembered.’’ In one incident demonstrators
threatened an employee, cursed at him, and banged on his
truck as they blocked his entrance. The union also engaged
in photographing drivers to instill fear of retaliation. Id. at
489–490. The administrative law judge found that the dem-
onstration constituted picketing, and further that the conduct
described above violated Section 8(b)(1)(A). Id. at 492.
The picketing in Electrical Workers IBEW Local 3 (Cable-
vision) was thus designed to intimidate and coerce employees
into supporting the organizational campaign, thus violating
their right to refrain from doing so, and the conduct was de-
signed to intentionally disrupt the employer’s ability to con-
duct business.
In contrast to those situations where picketers forcibly stop
employees in an attempt to prevent ingress and egress to an
employer’s facility, the brief stopping of employees which is
only incidental to noncoercive picketing activity does not
violate Section 8(b)(1)(A). Interstate Cigar Co., 256 NLRB
496, 497–498 fn. 3 (1981); H.N. Thayer Co., 99 NLRB
1122, 1130–1131 (1952); United Electrical Radio and Ma-
chine Workers, Local 813 (Ryan Construction Corp.), 85
NLRB 417 (1949).
The Union in this case did not attempt to actually block
ingress or egress to the facility. There is no evidence that the
demonstrators engaged in any threatening or coercive con-
duct when they spoke to the unit employees entering or leav-
ing the premises. Instead, the demonstrators momentarily
caused some unit employees to stop in order to encourage
them to vote yes in the election. The Employer has cited no
cases to support its contention that such conduct is by itself
objectionable. The Board has held that momentarily stopping
employees on the way to vote to encourage them to vote yes
does not necessarily constitute objectionable conduct.
In Firestone Steel Products Co., 241 NLRB 382 (1979),
the Board overruled an objection where a large gathering of
individuals, between 75–100, gathered at the entrance to the
jobsite where a multishift election was being conducted,
leafleted cars, and held signs. ‘‘While this activity might
have caused cars to slow down or stop momentarily, there
is no evidence that access or egress from the plant was other-
wise interrupted during the course of the evening.’’ Id. at
385–386. Although there were incidents of booing and
throwing of beer cans, ‘‘the mood of the crowd was not cast
in a singularly ominous tone, as it appears that at least some
had come to celebrate what they considered to be a success-
ful organizing campaign.’’ Id. at 385–3862.
In Firestone Textiles Co., 244 NLRB 168 (1979), a fairly
large number of employees, 15–35, gathered at the entrance
to the employer’s facility where an election was being con-
ducted over 2 days, distributed handbills and campaigned for
the union. Some cars stopped to take the union literature,
thus forcing the cars in back to stop as well. Several dem-
onstrators used foul language. One demonstrator stopped in
front of a vehicle which had been forced to stop because the
vehicle in front had stopped, and said, ‘‘Son of a bitch,
you’d better stop next time.’’ The administrative law judge
did not think that the ‘‘relatively few derogatory remarks ut-
tered at the plant were likely to or did have any impact on
employees and their voting intentions.’’ Id. at 717. He did
not find the union’s conduct objectionable:
I do not find that the presence of fairly large numbers
of union adherents at the plant entrance, by itself, con-
stituted a threat would deprive employees of their free-
dom of choice in a secret-ballot election. Union adher-
ents are entitled to handbill and to urge employees to
vote for the Union as long as it is done peacefully and
without threats. While the derogatory comments are re-
grettable, I do not find them coercive in these cir-
cumstances. I find that the overall conduct of the
handbillers was generally peaceful and within lawful
bounds.
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838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The decision was not based on a finding that the conduct at issue
was de minimus or isolated. The vote was a tie with several chal-
lenges, so there was no basis for saying coercion of one voter would
not have affected the election.
He noted in his decision, however, ‘‘that none of the em-
ployees were blocked from entering or exiting, and that that
all witnesses agreed that they had no difficulty in getting in
or out of the plant.’’ Id. at 171–172.
Thus, it is clear from Firestone Textiles Co. that simply
having a large number of demonstrators campaigning and
distributing literature to employees at the entrance to the fa-
cility during the election, even where some vehicles are actu-
ally forced to stop momentarily because of such conduct,
does not constitute objectionable conduct.
In Hy’s of Chicago, Ltd., 276 NLRB 1079 (1985), an elec-
tion was held ‘‘in the environs’’ of the employer’s restaurant.
Union representatives stationed themselves outside the res-
taurant, but away from the entrances ‘‘where they could
intercept employees on their way to work.’’ In at least one
incident an employee was intercepted and engaged in con-
versation and given union literature. However, no effort to
impede the employees’ access to the polling place or to un-
duly intimidate in the election process occurred. Moreover,
even though the union representatives stationed themselves
outside the restaurant during the election,
No evidence in this record establishes acts on the part
of the union representatives comprising efforts to stop
(except to discuss the electionissues) any employee or
commit any act which is deemed evidence of coercion
or interference in the election process. Id. at 1024.
The Union’s conduct was not found objectionable.3 Thus,
Hy’s of Chicago Ltd. also stands for the proposition that a
union does not commit objectionable conduct by briefly stop-
ping employees on their entrance to work before and during
an election where there is no other evidence of coercion or
restraint.
I find that the Union in this case did not engage in any
other acts of coercion or threats in its conduct at the dem-
onstration. Therefore, in the absence of any other acts of co-
ercion or threats, I do not find that the Union’s conduct in
stopping some vehicles entering and leaving the facility dur-
ing the election coerced or restrained employees in the exer-
cise of statutory rights. The Union made no attempt to pre-
vent anyone from entering or leaving. In fact, all 38 of the
eligible voters voted. There is no evidence of any threats
made to those employees by the demonstrators which could
arguably impact on their free choice. I, therefore, recommend
that Objections 1, 2, and 4 which allege coercive and threat-
ening conduct by the demonstrators be overruled.
The Employer objects to the Union’s conduct at the line
in stopping and speaking to employees as objectionable
based on Peerless Plywood Co., 107 NLRB 427, 429 (1954).
However, Peerless applies to election speeches on company
time to massed assemblies of employees. Bro-Tech Corp.,
315 NLRB 1014 (1994). It does not apply to individual or
minor conversations where employees are simply urged to
vote for one party. DeCasper Corp., 278 NLRB 143, 146
(1986); Business Aviation, Inc., 202 NLRB 1025 (1973).
There simply is no basis in the record to find that Peerless
applies to the brief urging of voters to vote for the Union
as they entered and left the facility, which occurred in this
case. Accordingly, I recommend that Objection 3 be over-
ruled.
The record does not support the Employer’s claim that the
Union’s conduct was objectionable because it constituted im-
permissible electioneering within sight and hearing of em-
ployees entering the voting area. On the contrary, there is no
evidence that any electioneering was conducted in the voting
area, and there is no evidence to show that any employee
saw or heard any electioneering from the election area.
While Alvino and Simeone testified that they could hear the
trucks honking their horns inside the facility, there is no evi-
dence that any employee heard, or could hear, honking in the
election area. Accordingly, I recommend Objection No. 5 be
overruled.
The Employer’s claim in Objection 6 that the Union’s con-
duct in distributing the mock ballots is objectionable is with-
out merit. Given the circumstances of the distribution of the
mock ballot by the Union demonstrators, and with its clearly
pro-Union appeal to ‘‘VOTE UNION YES,’’ the ballots
would not tend to mislead voters that the Board was encour-
aging a vote for the Union. See Baptist Home for Senior
Citizens, 290 NLRB 1059 (1988). Moreover, it does not ap-
pear that marking a ballot in a partisan way constitutes ob-
jectionable conduct given the warnings now attached to
Board Notices of Election. Wells Aluminum Corp., 319
NLRB 798 (1995); Hotel & Restaurant Employees Local 226
(Santa Fe Hotel), 318 NLRB 829, 839 (1995); Irvington
Nursing Care Services, 312 NLRB 594 (1993).
I therefore recommend that Objection No. 6 be overruled.
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