Dickerson Florida, Inc.

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1256 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dickerson Florida, Inc. and Teamsters Local Union
No. 769, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Cases 12-CA-10532,
12-CA-10583, and 12-RC-6350
29 February 1984
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 16 August 1983 Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent filed exceptions and a supporting brief
and the General Counsel filed an answering brief.
The Union filed a brief in support of the decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,I and
conclusions, to certify the representative, 2 and to
adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Dickerson
Florida, Inc., Stuart and Ft. Pierce, Florida, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Teamsters Local Union No.
769, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, and that it is the exclusive collective-
bargaining representative of the employees in the
following appropriate unit:
All truck drivers and truck mechanics, em-
ployed by the Employer at its Ft. Pierce, Flor-
ida division located at Selvitz Road, State
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 The election was conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 16 votes for and 13 votes against the
Petitioner, with I challenged ballot, an insufficient number to affect the
results.
268 NLRB No. 172
Road 611-B, Ft. Pierce, Florida; excluding all
office clerical employees, dispatcher, plant
clerical, guards and supervisors as defined in
the Act.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This matter was heard in West Palm Beach, Florida, on
May 2, 3, and 4, 1983. The issues were finally joined in
this matter through a consolidated complaint which
issued on March 8, 1983. The charges in Cases 12-CA-
10532 and 12-CA-10583 were filed on January 21, and
February 22, 1983, respectively. The consolidated com-
plaint alleges that the Respondent engaged in several in-
cidents of independent violations of Section 8(a)(1), and
a violation of Section 8(a)(3) by discharging employee
Gary Campbell.
By order directing hearing and consolidating cases
dated April 15, 1983, the Regional Director for Region
12 of the National Labor Relations Board consolidated
the above-mentioned cases with Case 12-RC-6350 in
order to resolve issues raised by the employer's objec-
tions to an election held in that case on March 25, 1983.
The results of that election in unit "B" as shown on the
tally of ballots, indicate there were approximately 31 eli-
gible voters, 16 votes were cast for Petitioner, 13 votes
were cast against the participating labor organization, 29
valid votes were counted, and there was 1 challenged
ballot which was not sufficient in number to affect the
results of the election.
Upon the entire record, and from my observation of
the witnesses, and after due consideration of the briefs
filed by the General Counsel, the Charging Party (the
Petitioner in Case 12-RC-65450), and the Respondent, I
make the following
FINDINGS OF FACT 1
1. JURISDICTION
A. Gary Campbell
Gary Campbell was discharged by the Respondent on
January 10, 1983. The General Counsel alleges that
Campbell was discharged because of his union activities.
The Respondent contends that Campbell was discharged
because he overfilled his dump truck with motor oil. Ac-
cording to the Respondent's position, Campbell, who
The complaint alleges, the answer admits, and I find that the Re-
spondent is a Florida corporation with offices and places of business in
Stuart and Ft. Pierce, Florida, where the Respondent has been engaged
in business as a contractor in the building and construction industry, con-
structing highways, matters related thereto, and shopping center develop-
ments, and is an employer engaged in commerce within the meaning of
Sec. 2(6) and (7) of the Act. The complaint also alleges, the answer
admits, and I find that Teamsters Local Union No. 769, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the meaning of Sec.
2(5) of the Act.
The General Counsel's unopposed motion to correct record herein is
hereby granted.
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DICKERSON FLORIDA, INC.
had during the last 2 months of 1982 worked for the Re-
spondent at both Stuart and Ft. Pierce, had before Janu-
ary 10 acted irresponsibly in performing his work. That
irresponsibility contributed to the Respondent's decision
to terminate Campbell.
Gary Campbell admitted that excess oil, in the amount
alleged by the Respondent, would severely damage the
dump truck's engine. The Respondent produced expert
testimony in regard to the potential damage to an engine.
In view of that evidence and Campbell's admission, I
shall first examine the Respondent's alleged basis for
Campbell's discharge. I have determined to initiate my
examination of the discharge allegation with the Re-
spondent's defenses, on determining that the evidence
shows that the alleged defense of negligently adding 15
quarts too much motor oil to an engine would justify
Campbell's discharge regardless of whether the Respond-
ent was aware of Campbell's protected activities. 2
Four witnesses contributed to the evidence regarding
the events that precipitated Campbell's discharge on Jan-
uary 10.
Gary Campbell testified that he was assigned truck 708
on January 10 and that, in line with established proce-
dure, he added approximately 2 quarts of oil before start-
ing his assignment. Once he reached approximately 35
miles per hour, Campbell's truck started shaking and vi-
brating. Campbell returned to the shop and told Ft.
Pierce Superintendent Jackson Barker that the "front
end of the truck was bad." Barker, who at that time was
checking out trucks as they left, told Campbell to park
truck 708, and that he would check the problem later.
Campbell parked the truck and waited out of sight of
the truck in the shop. Sometime later Barker drove truck
708 out to the shop in front of the grease rack and, with
the assistance of employee George Collins, started drain-
ing oil. Barker subsequently discharged Campbell telling
him there were 15 quarts too much oil in the truck's
crankcase.
Barker's version of the events on January 10 was, in
many respects, similar to that of Campbell. Barker added
that it was some 30 minutes after Campbell returned to
the shop before he was able to look at truck 708. Barker
made a routine eye check of the truck including tires,
then, preparatory to test driving the truck, he, in accord
with established practice, began an under-the-hood
check. When Barker checked the oil, he observed the oil
was some 2 inches above the full mark. Barker immedi-
ately drove the truck the short distance from the parking
area to the shop where he and George Collins drained 15
quarts of oil from the engine. According to Barker, the
oil gauge showed full after the 15 quarts were removed.
George Collins corroborated Barker's testimony. Col-
lins testified that, as he drained the oil, he filled a 5-quart
container three times with Barker checking the dipstick
each time the container filled. Collins testified that the
oil he drained from truck 708 was not hot.
Another employee, Marshall Milner, testified that he
saw Gary Campbell taking oil to truck 708 on the morn-
ing of January 10. Milner testified that he thought he
The Respondent, of course, denies knowing of Campbell's alleged
protected activities on or before January 10.
saw Campbell take 2 of the 5-quart containers to the
truck. Milner approached Campbell, but Campbell told
him that he knew what he was doing.3 Milner turned
and left.
B. Findings
As shown below, I am unable to credit the entire testi-
mony of Gary Campbell or Jackson Barker. I have ana-
lyzed Respondent's defense that Campbell would have
been discharged on January 10 in the absence of protect-
ed activities, in view of factors which do not rely totally
on either Campbell's or Barker's testimony.
There are a number of considerations which lead me
to conclude that the Respondent's defense must stand.
Those include:
(1) The evidence was substantial that before January
10, 1983, Gary Campbell demonstrated to Respondent's
Ft. Pierce supervisory staff that his aptitude for the job
was questionable.
Gary Campbell started as a driver of dump trucks,
hauling asphalt, when he was first employed by the Re-
spondent at Ft. Pierce on November 29, 1982. On the
basis of reports from Truck Foreman Bud Adams and
Asphalt Foreman John Johnson that Campbell was
unable to properly steer the dump truck as it was un-
loading asphalt into a paver machine, Superintendent
Jackson Barker pulled Campbell off the asphalt job and
assigned him to hauling dump rock and sand. Both
Adams and Johnson testified that they observed that
Campbell was unable to satisfactorily unload asphalt for
paving.
Later, shortly before Christmas 1982, Campbell stuck
his truck in sand. The testimony is disputed over wheth-
er Campbell stuck the truck while loaded. Employee
Marshall Milner testified that Campbell admitted to him
that he loaded his dump truck after becoming stuck, in
the hope of increasing traction to the point of freeing the
truck. In any event, the evidence is not in dispute that
Campbell broke the rear axle while attempting to free
the truck from the sand.
I am convinced that neither of the events mentioned
above directly precipitated Campbell's discharge. How-
ever, both occurrences would undoubtedly cause con-
cern in the mind of any reasonable employer as to
whether it would pay to continue to employ Campbell.
Against the background of the above-mentioned occur-
rences in a period of less than a month and a half since
being employed at Ft. Pierce,4 it is not surprising that a
third serious offense would result in Campbell's immedi-
ate dismissal.
(2) Several pieces of evidence convince me that the
Respondent's version of the events that led to Campbell's
January 10 discharge are essentially correct.
The first of those pieces results from the combined tes-
timony of Campbell and Jackson Barker showing that
truck 708 sat idle for 30 minutes to an hour after Camp-
s Campbell testified at the trial that the blue oil can was a one-gallon
container. The evidence showed that the can actually held 5 quarts.
4 During the period of Campbell's employment, the employees were
given a Christmas break from December 22, 1982, until January 3, 1983.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bell returned to the terminal on the morning of January
10.
Second, after reporting to Barker, Campbell parked
the truck (708) in the truck parking area which, accord-
ing to a General Counsel exhibit, was an area open to
view from most locations at the terminal. Campbell testi-
fied that, although he could not see truck 708 when
seated in the shop, he could see the parked truck by
walking a few feet from the shop.
Third, Jackson Barker directed the draining of oil
from truck 708 in the presence of several employees in-
cluding Gary Campbell and George Collins.
Fourth, when he drained the oil from truck 708 at
Barker's direction, Collins noticed that the oil was not
hot.
If Campbell did not overfill his truck with oil, then
either (1) Barker faked the overfill scenario, or (2) some-
one other than Campbell overfilled the truck. Only
Campbell and Barker had access to truck 708 before
Campbell's discharge.
In view of the evidence, I find it highly unlikely that
Jackson Barker either faked the overfilled scenario or
that Barker added the oil himself. As to whether the sce-
nario was faked, Barker would have risked having
Campbell, in the presence of other employees, ask to
look at the oil stick. If, as Campbell testified, he had
checked the oil in truck 708 before leaving on his Janu-
ary 10 assignment, it would have been normal and ex-
pected for him to openly dispute Barker's announcement
that the truck were overfilled with oil. I find it unlikely
that Barker, if the truck was not overfilled, would run
the risk of Campbell's questioning him and embarrassing
him by looking at the oil stick. Additionally, if the truck
were not overfull, the removal of 15 quarts of oil by
Collins would have left the truck dangerously low of oil.
The evidence indicated the truck was immediately as-
signed to newly hired employee Goldie Ross. Ross
drove the truck throughout the remainder of January 10.
If Barker was faking the truck was overfull, he was also
running the risk that either (1) Ross would check the oil
and discover that far too much oil had been drained,5 or
(2) that the truck would be severely damaged by being
driven during the day without sufficient oil. I find it il-
logical and unbelievable that Barker faked the truck was
overfull.
The second alternative is that Campbell was framed by
Barker or someone else acting for the Respondent over-
filling truck 708. To do so would require the truck to be
overfilled in the parking lot in line of view of several
employees including possibly Gary Campbell. Barker
would have had to move 15 quarts of oil from the oil
rack near the shop where Campbell was waiting to the
truck open the hood, and add the oil. I find it highly un-
likely that he would do that.
Of course, Barker could have driven the truck else-
where. However, the General Counsel's diagram of the
terminal area does not reveal any area in the terminal
where Barker could have been assured that he was out
of everyone's view. Moreover, Barker could not have
I Although Ross testified, he was not asked if he had checked the oil
on truck 708 on January 10.
driven the truck away from the terminal without heating
the engine and its oil. The testimony of George Collins
shows that the oil was not hot when drained. Therefore,
the evidence shows that it is unlikely that the oil was
added to truck 708 by the Respondent in order to frame
Campbell.
The above factors lead me to conclude that Jackson
Barker was reasonable in his belief on January 10 that
Gary Campbell had added 15 quarts too much motor oil
to the crankcase of truck 708.
Barker reacted immediately to his discovery that truck
708 contained 15 quarts too much oil. He discharged
Gary Campbell. In view of my finding that Barker was
justified in that belief, plus evidence showing that Camp-
bell had earlier committed offenses which cast doubt on
his ability to function as a productive driver, I find that
Respondent proved that Gary Campbell would have
been discharged on January 10 in the absence of protect-
ed activities. I recommend dismissal of the 8(aX3) allega-
tion.
11. THE 8(A)(1) ALLEGATION
Several independent allegations were made against the
following admitted supervisors:
A. Jackson Barker
Gary Campbell, Harry Turer, and James Lathberry all
testified to events which they placed during the January
3, 1983, safety meeting, held by Barker at the Ft. Pierce
terminal. According to their testimony, Barker instructed
the drivers to pick up paper or trash when they had idle
time. Campbell spoke up, "union drivers don't pick up
trash." Barker replied to the effect that the facility was
nonunion and never would be union.
Several witnesses for the Respondent, including Jack-
son Barker, recalled Barker instructing the drivers to
clean up the area, but they placed the meeting on Janu-
ary 10, 1983. The Respondent's witnesses, with one ex-
ception, denied hearing any comment about union driv-
ers from Campbell or a reply from Barker. That one ex-
ception was employee Marshall Milner. Milner testified
favorably to the Respondent in several material area.
However, when asked by the Respondent's attorney,
Milner testified that on January 10, the morning of
Campbell's discharge, Campbell told Barker "union driv-
ers don't pick up trash." According to Milner, Barker re-
plied, "this is not a union shop and it isn't going to be a
union shop."
1. Discussion
I was impressed with the demeanor of Harry Turer,
James Lathberry, and Marshall Milner. Lathberry espe-
cially impressed me with his apparent candor. His testi-
mony included responses to questions regarding his ap-
proaches to the Respondent's officials to mention that he
was having second thoughts about the Union. Those
comments were obviously difficult and embarrassing for
Lathberry. His demeanor and his difficult testimony con-
vince me that Lathberry was a truthful witness.
As shown above, Marshall Milner was called by and
testified favorably to the Respondent. Nevertheless, in
1258
DICKERSON FLORIDA, INC.
his testimony regarding the safety meeting, he testified in
accord with Lathberry, Turer, and Campbell.
As to Respondent's witnesses, it is possible that the
employee witnesses failed to hear Campbell's comments.
Therefore, it is not necessary to discredit those witnesses.
However, Jackson Barker denied that he responded to
Campbell to the effect that the Respondent would never
be unionized. I do not believe Barker's denial. Baker's
testimony in this instance was in direct conflict with an-
other of the Respondent's witness, Marshall Milner. In
another area, as shown below, as well as in the instant
matter, Barker's testimony directly conflicted with the
testimony of James Lathberry whom I have credited.
Moreover, I find that Barker appeared to exaggerate re-
garding the underlying reasons behind Campbell's dis-
charge. Barker testified that one of the underlying fac-
tors involved Campbell's tailgating other vehicles.
Barker attempted to tie in his tailgating testimony with
his comment to Campbell to stay away from Harry
Turer with the apparent implication that Campbell was
tailgating Harry Turer's truck. However, Barker also tes-
tified that a supervisor other than Barker witnessed
Campbell's tailgating and that other supervisor allegedly
talked to Campbell about the practice. It was apparent
that Barker's effort to tie in his comments about staying
away from Harry Turer with Campbell's alleged tailgat-
ing was a sham designed to justify his comments in light
of Harry Turer's reputation as a prime union pusher.
I credit the testimony showing that Barker replied to
Campbell during the January 1983 safety meeting to the
effect that the Respondent was not, and never would be,
union.
2. Conclusion
The General Counsel alleges that Barker's comment to
the effect that the Respondent is not, and never will be,
a union shop is violative of Section 8(a)(1) of the Act.
The announcement that this facility is not, and will not
become, a union shop is troublesome. I recognize that
one construction to that comment carries an inherent
threat that the Respondent will take any necessary action
to prevent unionization. However, another construction
could be that, in Barker's opinion, his employees will
never select a union. The General Counsel cited a
number of cases supporting his position. In the cases, in-
cluding Entronic Corp., 227 NLRB 1770 (1977), com-
ments about the facility not being union were coupled
with illegal interrogation during the same conversation.
In Roma Baking Company, 263 NLRB 24 (1982), the
Employer's comments were included in a context of a
threat to close and illegal interrogation. In Fugazy Conti-
nental Corp., 265 NLRB 1301 (1982), numerous inde-
pendent 8(aXl) violations occurred and Respondent
threatened that it would not allow the employees to
bring a second union into the shop.
I find that the instant allegation must be distinguished
from the above cases. Here Barker's comment was the
first credited occurrence involving the Respondent's re-
marking about a union and, even here, it did not occur as
a result of known union organizing activities. I do not
find that Barker's comment would have a tendency to
threaten or coerce. Moreover, I do not believe that it
stresses the futility of supporting the Union. As noted
above, a different interpretation could as easily result
from Barker's comment. Therefore, I find that the Re-
spondent did not violate Section 8(a)(l) in this instance.
Gary Campbell testified that some 2 or 3 days after the
January 3, 1983, safety meeting Jackson Barker came up
to him as he was working at the Ft. Pierce shop. Barker
asked Campbell if he were involved in the Union. Ac-
cording to Campbell, he replied, "damn right because it
was my right."
Barker denied that he questioned Campbell about a
list, and that he knew before Campbell's discharge that
Campbell was involved with the Union.
3. Discussion
As shown above, I do not find Jackson Barker to be a
credible witness. However, I also had difficulty with the
reliability of Gary Campbell. During cross-examination,
Campbell was noticably defensive. Additionally, Camp-
bell was evasive in some areas, including, for example,
his testimony regarding a crane falling off the truck he
was assigned to drive while working out of the Respond-
ent's Stuart terminal, his being taken off the asphalt job
while at Ft. Pierce, and his union activities before his
discharge. In other areas, including his testimony that he
told no one that he stuck his truck in the sand at Jensen
Beach when the truck was empty, Campbell's testimony
conflicted with credited testimony from other witnesses.
Due to the above difficulties and my observation of his
demeanor, I am unable to credit Campbell's uncorrobor-
ated testimony. Since Campbell was the sole witness re-
garding his interrogation by Barker, I shall discredit that
testimony. Therefore, since the General Counsel has the
burden of proof, I find that this allegation of interroga-
tion fails.
Campbell was also the sole witness to an alleged threat
of discharge from Barker during Campbell's termination.
That testimony by Campbell was also disputed by the
Respondent. In view of my findings regarding Camp-
bell's credibility, I shall also discredit his testimony of
the alleged threat. I recommend dismissal of the allega-
tion that Barker threatened to discharge Campbell be-
cause of his union activities.
Current employee James Lathberry testified to two con-
versations involving the Union with Jackson Barker. The
first conversation Lathberry recalled occurred after he
signed his union authorization card on January 15. On
that occasion, Barker came to him in front of the dis-
patcher's office at the Ft. Pierce terminal and asked him
if he had signed a union card. Lathberry indicated that
he had and Barker asked, "What for?" Lathberry replied
to better himself. Barker then stated, "Well, I don't need
people like you. You might as well go collect your un-
employment." Lathberry indicated that Truck Foreman
Bud Adams and employee Ricky Fisher were present
during the conversation with Barker. Fisher testified in
corroboration of Lathberry. Adams was called as a wit-
ness by the Respondent, but he was not asked and did
not testify about this conversation between Lathberry
and Barker. Barker was asked about the conversation,
and he admitted asking Lathberry if he had signed a
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union card. However, Barker denied the remainder of
the conversation as related by Lathberry.
Lathberry testified that, approximately 2 days after the
above conversation, he was approached by Jackson
Barker along with Stuart Truck Foreman Curtis Feagins
in the shop yard at Stuart. Lathberry testified that
Barker asked him how many people were at the first
union meeting. Feagins asked him who was at the union
meeting. Lathberry replied that he could not answer the
questions. Barker then told Lathberry that someone had
come by his house and told him everything, and that he
wanted to clarify it with Lathberry. Lathberry again told
Barker that he could not answer. Barker told him that
the boy who came over to his house, that Barker could
swing his weight to save the boys' job and that, if Lath-
berry would tell him what he wanted to know, he would
try to swing his weight and help Lathberry save his job.
Barker told Lathberry that he had 20 minutes to think
about it and, if Lathberry told him what he wanted to
know, he would help him.
4. Discussion
As indicated above, I find that James Lathberry testi-
fied credibly. As to the first of the above conversations,
his testimony was corroborated by the testimony of
Richard Fisher. Additionally, although the Respondent
called another witness to that conversation, Truck Fore-
man Bud Adams, the Respondent did not ask Adams
about the conversation between Lathberry and Barker.
Bud Adams is the stepfather of James Lathberry. How-
ever, in other respects, Adams, who is a supervisor with
the Respondent, testified favorably to the Respondent's
position. I am convinced, and find, that the version of
this conversation related by Lathberry and Richard
Fisher is correct, and I credit their testimony.
As to the second conversation, both Jackson Barker
and Curtis Feagins denied testimony by Lathberry. Ac-
cording to Barker and Feagins, they did have a conver-
sation with Lathberry at the Stuart shop. However, ac-
cording to them, Lathberry came to them and asked how
he could get his union card back. Barker testified that he
told Lathberry that he would check with Ted Tyson.
Lathberry admitted telling Barker during a later conver-
sation that he was having second thoughts about the
Union, but Lathberry denied ever asking Barker about
rescinding his union authorization card. As indicated
above, I find Lathberry to be credible. I do not credit
the testimony of Jackson Barker or Curtis Feagins. Fea-
gins testified on cross-examination that he had absolutely
no interest in finding out what was going on with the
union campaign or who was involved in the union cam-
paign. When asked by the General Counsel if he had
heard anything from employees about the Union, Feagins
replied that he had not, but that he had set up a meeting
between a driver or two and President Ted Tyson but
that neither driver had mentioned the word union. Then,
Feagins testified that it turned out that all those employ-
ees wanted was a loan or something. I observed Feagins'
demeanor, and I was impressed that he was prevaricating
especially in the areas regarding his interest in the em-
ployees' union activities.
5. Conclusions
In their first conversation, Barker's interrogation of
Lathberry extends well beyond recognized limits. After
asking if Lathberry had signed a union card, Barker de-
manded that Lathberry explain his actions with the com-
ment, "what for." Barker then threatened Lathberry
with termination by commenting that he did not need
people like him, and that Lathberry may as well collect
his unemployment. I find that Barker's comments consti-
tute interrogation and a threat of discharge.
Two days later, Barker, along with Curtis Feagins,
again illegally interrogated Lathberry by asking him the
number and names of employees that attended a union
meeting. Barker and Feagins then threatened Lathberry
with discharge by implying that they would not help
save Lathberry's job unless he told them what they
wanted. Those comments constitute clear violations of
the law. Additionally, Barker told Lathberry that an-
other employee had told him everything about the
Union. Barker thereby created the impression that he
was spying on the employees' union activities in viola-
tion of Section 8(a)(l).
Former employee Harry Turer testified that he had a
conversation at the Stuart terminal with Jackson Barker
and Stuart Foreman Curtis Feagins. Turer testified that
he believes the conversation occurred about a week after
Gary Campbell's January 10 discharge. Turer testified
that Barker came up to him and asked if he had signed a
list or petition. Turer replied that he did not know what
Barker was talking about. Barker then turned to Feagins
and said, "you tell him what will happen." Feagins
stated, "If we find out if you or anybody else had signed
a list, you will be down the road."
Jackson Barker denied that he ever discussed the
Union with Harry Turer. Curtis Feagins denied having
the conversation related by Turer. Feagins testified that
he did have a conversation with Turer on one occasion
when Turer came down to pick up a truck, but, accord-
ing to Feagins, the conversation consisted entirely of "do
you know what truck you come to pick up."
The evidence is undisputed that, during December
1982 before the conversation alleged above, Harry Turer
circulated a list among the drivers for better working
conditions. Curtis Feagins did admit in his testimony that
driver Marty Bartlet mentioned something to him about
a list. Barker also learned of the list, and he called Curtis
Feagins and asked if Feagins had heard anything about a
petition going around. A couple of days after that phone
call, Jackson Barker drove to Stuart to meet with Presi-
dent Ted Tyson. At that time, Barker mentioned to Fea-
gins that he had somemore information on the list. Sub-
sequently, Barker, in the presence of Feagins, told Tyson
that there was a list going around to get the employees
organized and that some of the employees had attended a
meeting.
Jackson Barker admitted learning from employee Mar-
shall Milner on January 17 that a petition was being
signed by the employees.
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DICKERSON FLORIDA, INC.
6. Discussion
As indicated above, I do not credit the testimony of
Jackson Barker or Curtis Feagins. Harry Turer demon-
strated some confusion as to the time of this conversation
with Barker and Feagins. He originally testified that he
believed the conversation occurred after Gary Campbell
was discharged but before he signed a union authoriza-
tion card. Turer signed a union authorization card on
January II11, the day after Campbell was discharged.
Turer vacillated on whether the conversation between
Feagins, Barker, and himself occurred before or after he
signed a union card. His final recollection was that the
conversation occurred about a week after he signed the
union authorization card. Despite his difficulty in placing
those events, I was impressed with his demeanor. His
testimony about this conversation appears reasonable in
view of the admissions of Feagins and Barker that they
learned of a list being circulated among the drivers
around January 17, 1983. With those factors in mind, I
have decided to credit Turer's version of that conversa-
tion.
7. Conclusion
Again, Barker and Feagins coupled interrogation of an
employee about protected activities with an open threat
that involvement in protected activities would result in
discharge. The interrogation and threat constitute 8(a)(1)
violations.
B. Ted Tyson
Following his discharge on January 10, 1983, Gary
Campbell drove to Stuart, Florida, and talked to Re-
spondent President Ted Tyson. According to Campbell,
during that conversation, Tyson told him that he had
heard about the union activity going on at Ft. Pierce,
and that he did not like (Campbell's) kind, and that he
did not need (Campbell's) kind there.
Ted Tyson denied that he had any knowledge of
Campbell's union activities prior to Campbell's discharge
on January 10.
Discussion
As indicated above, I am unable to credit the uncorro-
borated testimony of Gary Campbell. Since the General
Counsel has the burden of proof as to this allegation, it is
unnecessary for me to consider the credibility of Ted
Tyson. I find that the General Counsel failed to prove
that Ted Tyson either created an impression of surveil-
lance of his employees' union activities or that he threat-
ened an employee with discharge for engaging in union
activities.
III. OBJECTIONS
The March 25, 1983 election at the Ft. Pierce terminal
resulted in the following tally:
Approximate number of eligible voters-31
Void ballots-0
Votes cast for Petitioner-16
Votes cast against participating labor
organization- 13
Valid votes counted-29
Challenged ballots-
Valid votes counted plus challenged ballots-30
That election was held pursuant to a Stipulation for
Certification Upon Consent Election which was ap-
proved by the Regional Director for Region 12 on Feb-
ruary 28, 1983. On April 1, 1983, the Respondent (the
Employer) timely filed objections to conduct affecting
the results of the election as follows:
1. The Union, by and through its agents, mem-
bers, supporters and others under its control and di-
rection, made illegal and unfair promises of benefits
to employees conditioned upon the Union prevail-
ing in the election. Such promises and inducements
constitutes objectionable conduct which interfered
with the election process. Crestwood of Stockton
d/b/a Crestwood Manor, 234 NLRB 1097 (1978).
2. The Union, by and through its agents, mem-
bers, supporters and others under its control and di-
rection, remained in the polling area in full view of
the voting employees and maintained a list of per-
sons who were voting in the representation election.
3. The Union, by and through its agents, mem-
bers, supporters and others under its control and di-
rection, remained in the polling area after having
voted, and engaged in improper group meeting, co-
ercive electioneering and other improper captive
conduct.
4. The Union, by and through its agents, mem-
bers, supporters and others under its control and di-
rection, made coercive and threatening remarks
toward employees during the time in which the
election was being conducted that if they did not
vote for the Union, they would be subjected to
physical violence.
5. The Union, by and through its agents, mem-
bers, supporters and others under its control and di-
rection, came onto the Employer's property during
the course of the election, and stationed himself
within close proximity to the polling place and un-
lawfully observed and surveyed the election, con-
ducted an unlawful group meeting, and conversed
with employees prior to and after they had voted.
6. The Union, by and through its agents, mem-
bers, supporters and others under its control and di-
rection, deliberately misrepresented material issues
to employees eligible to vote during the critical 24-
hour period prior to the election.
7. The Union, by and through its agents, mem-
bers, and others under its control and direction, mis-
represented wages and benefits that had allegedly
been negotiated with other employers.
8. The Union, by and through its agents, mem-
bers, supporters and others under its control and di-
rection, through improper and unlawful communi-
cations to employees, threatened employees with re-
taliation if they did not vote for the union; such as
fear or reprisal in loss of job opportunity and ad-
vancement which prevented the holding of a fair
1261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election. Florida-Texas Freight, Inc., d/b/a Frates,
Inc., 230 NLRB 952 (1977).
In its brief, the Respondent consolidated its arguments
regarding objectionable conduct and alleged that the fol-
lowing constituted grounds on which the election should
be set aside:
1. Union election observer Harry Turer gathered
employees together at the March 25 election, "in
the polling area, not more than thirty (30) feet from
the polling entrance itself. Mr. Turer started yelling
to everyone all the yes votes come down here."
2. While voters stood in line to vote, union sup-
porters shouted to employees to vote yes. Upon ar-
rival of employee "Pop" Clayton "the group
chimed here comes another yes vote," and "we're
going to win this thing now."
3. Union Observer Turer continued his election-
eering inside while sitting at the observer's table by
telling at least one voting employee to vote yes
adding "you're a fool if you don't."
4. Two employees were embarrassingly referred
to as company pimps and one of those employees,
already disabled, was subjected to physical threats.
As this employee pressed toward the door to cast
his ballot the group jeered company pimp adding
"if you think that one leg is bad, we will fix the
other one." At the same time these threats were
made one union supporter made a kicking motion as
if he was going to kick the disabled employee's
good leg.
5. "Just as the election was to begin, Union offi-
cial Manny Blanco arrived at the Dickerson's poll-
ing site. Mr. Blanco who was involved in the initial
organizing meeting of Dickerson employees, came
to Ft. Pierce that day with full knowledge that an
election was being held. Mr. Blanco openly en-
gaged in sustained conversation with voting em-
ployees, telling them how the Teamsters allegedly
helped an injured power plant employee through
collections."
I shall first consider whether the evidence supports the
Respondent's allegations. The Respondent called four of
its current employees who testified in support of their
objections. Those employees were Marshall Milner,
Thomas Strickland, Kenneth Zallie, and Ronald Wentz.
A. Gathering Employees Before the Election
Thomas Strickland and Ronald Wentz testified on
behalf of the Respondent. Strickland testified as follows:
Q. Okay, now if you would, tell us what you ob-
served there at the property immediately prior to
the time the polls opened.
A. Before the polls opened?
Q. Right.
A. Everybody was gathered around their cars
down there in front of the office.
Q. Did anybody call-was anything said about
calling people together?
A. They just called everybody and said, "Every-
body come over with the yes votes." And every-
body was standing around there talking before the
election opened. When he come out and said, "The
polls are open," everybody went and got in line.
Q. Okay, now who was-who are you talking
about that called people together?
A. Everybody.
Q. Did you hear Mr. Harry Turer say anything?
A. Harry was down there before and caught ev-
erybody down there.
Q. And you mentioned something about yes
votes?
A. Yeah.
Q. What was that again?
A. Everybody just said, "Come on down here
where the yes votes are at."
JUDGE ROBERTSON: I'm sorry; everybody said,
"Just come down here where the yes votes are at;"
is that what you said?
THE WITNESS: Yes, sir.
JUDGE ROBERTSON: Okay.
BY MR. ANDREWS:
Q. Could you just tell us generally what was dis-
cussed at this little gathering.
A. Everybody was just talking about voting yes
for the union.
Q. The union was discussed?
A. Yeah, voting yes for the union.
Q. About how many people were in this group?
A. About everybody that voted.
Q. Anybody speak up and say that they ought to
vote no for the company? Did you hear anybody
say that?
A. No, sir, I didn't.
Later, under cross-examination, Strickland testified:
Q. Exactly what did Harry tell you to do?
A. Harry and a bunch of them were standing
down there, and we were all-a bunch of us were
standing up here. Harry called a bunch of us down
here. We all come down here. Harry was there just
a few minutes, and then Harry went inside the trail-
er.
Ronald Wentz, the stepson of Terminal Superintendent
Jackson Barker, testified:
THE WITNESS: "Yes," Lathberry. And they start-
ed-Harry went down and they started saying, "All
the yes votes [sic] come down here." So everybody
started moving down there, two other fellows from
the opposite direction, left me standing there by
myself. So whenever I started coming down the
hill, they said, "Hey, not you, we know you're a no
vote."
So I said, "Hey, you know, you don't know how
I'm going to vote." So I went on down with them.
And they were more or less, I would say, just
asking everybody, you know, to vote yes and we
can win this election and we'll get more money and
better benefits and just your average stuff, I guess.
1262
DICKERSON FLORIDA. INC.
And the polls got ready to open. Harry went
inside.
In defense, the Union called several witnesses. Harry
Turer testified that he was the union observer during the
March 25 election. Turer testified that he was instructed
as to his duties by the Federal agent prior to the elec-
tion. Turer said that he got all the drivers together and
told them that, when they came in, they should come in
two at a time, get their ballots, and put their vote in the
box, and go back out the door. Turer denied asking the
yes voters to gather in one part of the facility. Richard
Fisher testified that Harry Turer came out shortly before
the vote started and told the drivers to go in two at a
time and they would be handed a ballot, and they were
to vote and exit by the side door. Fisher testified that
Turer did not make any comments about how people
ought to vote.
Current employee Charles Sossong testified that the
only time he saw Harry Turer before the polls opened
was an occasion when Turer came out to tell the people
what they were supposed to do, "like go in and vote and
leave." Sossong testified that Turer did not say anything
about how to vote for the Union. Sossong also testified
that he did not see Harry Turer or anyone shortly before
the election ask for all the yes votes to come down and
gather into a group.
Discussion
Contrary to the Respondent's assertion in his brief,
none of the evidence supports the contention that union
observer Harry Turer called the "yes votes" together
before the election. A close examination of the testimony
of the Respondent's witnesses shows that the term "yes
votes" was attributed to unidentified persons.
There is evidence which was corroborated by Turer
himself, that Turer spoke to the voters before the polls
opened. Turer testified that he instructed the voters on
how to enter, cast their ballots, and leave, and that he
did not comment as to their vote preference. That testi-
mony is in line with the testimony of Fisher and Sos-
song. A careful analysis of Thomas Strickland's testimo-
ny fails to reveal conflicts on that point with Turer, Sos-
song, and Fisher. Strickland admitted on cross, as shown
above, that "Harry [Turer] was [outside] just a few min-
utes, and then Harry went inside the trailer."
Moreover, the testimony of Fisher and Sossong called
into question whether prounion employees were called
together and antiunion employees excluded. I am con-
vinced and find that the union observer did not attempt
to segregate and gather the prounion employees. Addi-
tionally, I credit the testimony that Turer did not solicit
yes votes immediately before the polls opened.
I am reluctant to attribute any weight to the testimony
of Strickland and Wentz that certain unidentified persons
asked the yes votes to gather, that certain unidentified
persons solicited yes votes, and that unidentified persons
told Wentz not to join the yes votes group. Obviously,
testimony of that type cannot be rebutted by others nor
thoroughly tested through cross-examination. Moreover,
absent some identification by name, or in the absence of
names, by physical characteristics, serious questions arise
as to the reliability of the witnesses' testimony. In view
of the above factors, the conflicts between their testimo-
ny and that of Turer, Sossong, and Fisher, and on the
basis of my observation of their demeanor, I shall dis-
credit the testimony of Strickland and Wentz in this
regard. Therefore, I find that the evidence does not sup-
port the Respondent's factual contention in this regard.
B. The Arrival of (Pop) Clayton
Marshall Milner testified that he picked up John (Pop)
Clayton and brought him to the polls. The polls were
opened at 4:30 p.m. on March 25. Milner testified that he
arrived with Clayton around 4:50 p.m.
Ronald Wentz testified that when Marshall pulled in
with John Clayton, everybody started hollering, "here
comes another yes vote. We are going to win this thing;
here comes another yes vote."
Richard Fisher witnessed the arrival of Clayton.
Fisher testified that the employees spoke to Clayton,
who had been on medical leave.
James Lathberry testified that he spoke to Pop Clay-
ton and Clayton came up. Lathberry testified that a little
bit of kidding occurred when Clayton arrived, "like
here's another yes vote." Lathberry testified those com-
ments were made because Clayton is a retired member of
the Teamsters.
John Clayton did not testify.
Discussion
As indicated above, I find James Lathberry to be a
credible witness. In light of his testimony plus the failure
of the Respondent to call John Clayton, I am unable to
conclude that any of the remarks to Clayton were objec-
tionable. Nothing in the testimony of Lathberry indicates
anything more than normal exchanges of greetings and
good humor occurred when Clayton arrived. I find that
the Respondent failed to prove the occurrence of any
objectionable conduct in this instance.
C. The Union Observer Campaigned During the
Election
Kenneth Zallie, who is currently employed by the Re-
spondent as a truckdriver at its Ft. Pierce location, testi-
fied that he voted during the March 25 election. Zallie
testified that he entered the polling area with another
employee who was on crutches, and, while the Board
agent was assisting the employee on crutches, Harry
Turer, the Union's observer, told him to "vote yes."
Subsequently, Zallied repeated the same testimony. How-
ever, later on cross-examination, Zallie testified that
when Turer spoke to him he said, "vote yes, you're a
fool if you don't."
Harry Turer denied that he said anything to Kenneth
Zallie before Zallie voted. Turer specifically denied
asking Zallie to vote yes for the Union. Turer testified
that he did not know Kenneth Zallie.
Neither the company observer, the Board agent, nor
Goldie Reed (the employee on crutches) testified.
1263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussion
As indicated above, I have credited the testimony of
Harry Turer on other issues. Turer appeared to be testi-
fying truthfully in this instance as well. His testimony
that he did not know Kenneth Zallie is supported by
Zallie's testimony that he began driving a truck at Ft.
Pierce in the month before the election. Zallie's testimo-
ny differed somewhat on cross from his testimony on
direct, as noted above. Additionally, I am bothered by
the fact that the Respondent did not call its own election
observer to testify in this regard. No evidence was devel-
oped to show that the election observer was unavailable,
nor was testimony developed to show that the election
observer was not in a position to overhear the alleged
comments by Turer.
Turer's comments, if made, would have been in direct
conflict with the instruction he had received from the
Board agent. It would be surprising for Turer to engage
in conduct which he knew was improper, especially in
view of the fact that he did not know Kenneth Zallie at
the time. Moreover, of course, if Turer made the re-
marks attributed to him by Zallie, he risked being over-
heard by the other observer and, perhaps, by the Board
agent. Against that background and my general impres-
sion of Harry Turer who testified at length on other
issues as well as this one, I shall credit Turer's denial and
discredit Zallie's testimony in this regard. Therefore, I
find that the Respondent has not proven this allegation.
D. The "Company Pimps" Remarks
The Respondent contends that two employees were
referred to as company pimps. I am unable to find that
evidence in the record. The evidence did support that
contention as to Goldie Reed (below). The only other
record evidence regarding company pimps involved the
testimony of Marshall Milner. However, there was no in-
dication that Milner was called a company pimp at any
time proximate to the election. His testimony was that he
did not recall anyone calling him a pimp on the day of
the election. Therefore, I find that no objectionable con-
duct was proven as to alleged comments involving Mar-
shall Milner.
As to Goldie Reed, on the date of the election, Reed
was on disability leave.
Ronald Wentz testified regarding Reed's appearance at
the polls:
. . .Goldie and I guess it's his son came up. Goldie
was on crutches. And whenever he come up, they
started saying, you know, "Here comes the compa-
ny pimp."'
And he was having a little hard time, you know,
getting up the ramp. Everybody was right at the
top of the ramp in front of the door. So he had to
more or less walk right through the crowd. He was
up there and he stopped, you know, in the middle
and everybody was, you know some people was
calling him a company pimp and some was kidding
with him.
I had my back to him. I believe I was talking to
either Jimmy Lathberry or John McDaniels. And I
heard someone say, "If you think that one leg's bad,
we'll fix the other one." Just as I turned around,
someone made like a kicking motion toward his leg,
and Tommie Strickland said, "Wait a minute." He
said, "You can't make any threats."
And that was about all that happened then. He
went inside to vote. Like someone said, he went
inside and voted, come back out the front door and
left pretty quick. He didn't stick around long at all.
Another witness for Respondent, Thomas Strickland,
testified regarding Goldie Reed:
Q. Did you hear anybody make any comments to
Goldie when he was going up to vote?
A. Everybody called him a pimp.
Q. Did you hear anything else said to him?
A. They just called him a company man; he was
a pimp, didn't have to worry about his vote; he was
a no vote.
Q. Did you hear anything said about a broken leg
or going to break the other leg or words to that
effect?
A. No, sir, I didn't.
Strickland also testified regarding Reed at the polls:
· . . You said that everybody called him a company
pimp. Do you know why they called him a compa-
ny pimp?
A. No, sir, I don't.
Q. How did Goldie respond to these statements?
A. Goldie said nothing.
Q. He didn't say anything at all?
A. No.
Q. Was he in a good mood at the time he was on
the line?
A. Yeah, he seemed to be.
The Union called Richard Fisher, Charles Sossong,
and James Lathberry regarding Goldie Reed. None of
the three recalled that Goldie Reed was threatened.
Again, James Lathberry appeared to testify candidly:
A. Well, I let Goldie in front of me to vote, be-
cause he was on crutches.
Q. This is White Goldie?
A. White Goldie, right.
Q. Did you say anything to Goldie?
A. I asked him how his foot was doing and you
know, what the doctor had said to him.
Q. Did you hear anybody else say anything to
Goldie while you were waiting?
A. Well, there was one remark said to Goldie
that, you know, you'd best vote yes, or you think
that one foot's bad, you wait to see the other, but it
was all in kidding.
Q. Do you know who said that?
A. I believe it was Marshall Milner.
Q. How do you know that?
A. Well, Marshall is the kind of person that that's
his attitude. That's just the way he is.
1264
DICKERSON FL ORIDA, INC.
He always jokes around like that.
Q. How did Goldie respond to that comment?
A. A wisecrack back, laughing at Marshall.
Q. He made a joke out of it. in other words?
A. Yes, sir.
Q. How would you describe the tone with which
that comment was made?
A. In joke, you know, in fun.
1. Discussion
As shown above, I found James Lathberry to be the
most reliable of the witnesses that testified regarding the
Golden Reed incident. Therefore, I shall credit Lath-
berry's account of the incident.
2. Conclusion
The credited evidence shows nothing more than the
general lighthearted comments that often occur when
workers see each other after an absence. Milner, who ad-
mitted that he was considered by some of the employees
to be a company pimp, joked with another person that
some of the employees thought of as procompany. Both
witnesses for the Employer and the Union testified that
Golden Reed was in a good mood.
I fail to see how comments which were obviously
spontaneous, lighthearted, and made in jest could have
affected anyone's vote. The credited evidence clearly
demonstrated that none of the remarks to Reed had the
tendency to interfere with anyone.
Although Reed was not called to testify, there was no
indication that he was unable to appear in these proceed-
ings. He, of course, was best situated to overheard com-
ments directed at him. In the absence of Reed's testimo-
ny, I am convinced and find that nothing was said, and
no actions were taken against Reed which were objec-
tionable.
E. The Manny Blanco Incident
Several witnesses described the appearance of Manny
Blanco near the polling area while the polls were open
on March 25, 1983. Blanco testified that he is employed
by Ebasco Services on Hutchinson Island where he is
steward for Local 769. In late December 1982, Blanco
was involved in relaying a petition which was originated
by Harry Turer and signed by several of the Respond-
ent's Ft. Pierce employees to Local 769's office. Appar-
ently, the list of names was given by Turer to his neigh-
bor, a Teamsters member. The list was then, eventually,
given to Blanco who turned the list over to Local Busi-
ness Agent Joe Morale at a union meeting on January 4.
Several witnesses testified about a man, who was final-
ly identified as Blanco, driving up near the polls on elec-
tion day. Marshall Milner testified:
A. Well, I was standing there talking to the gen-
tleman back there, and a green Volkswagen pulled
in and said to me, "Did you see the Business agent."
And I said, "No, I didn't. I didn't see the man." I
says, "He must be inside."
So he looked around, and he said, "1 don't recog-
nize, I don't see his car." And I said, "Well, I
haven't seen him."
Well, he w'as there in the beginning, and then by
the time I got there with Mr. Clayton, he had left,
and the gentleman that he looked for came at the
end of the election. And he recognized him.
Q. About what time did this-did he identify
himself as associated with the Teamsters in any
way?
A. Yeah, he told me that he come there to get
some sweatshirts or T-shirts or something from the
Business Agent, that the next day there were going
to give them out for the use for the kids in Port
Saint Lucie.
A. I'd say it was around 5:15, something like that.
Q. And he stayed until after the election was
over?
A. Yeah, he-the gentleman that he was looking
for came back just toward 5:30, and then he left and
pulled across the street and sat across the street.
Ronald Wentz testified:
A. There was a fellow who came up around 5
o'clock who said he was a steward from the power
plant and said he was supposed to meet the other
Board Agent there to see him about some T-shirts
or jackets or something like that. I believe it was T-
shirts.
Marshall and I were talking to him, and Robert
McDaniels was there and a couple other people
scattered around. The Board Agent had asked ev-
erybody to go get a coke or scatter for a while until
the rest of the people come in to vote.
Q. Excuse me, Mr. Wentz, let me ask you ques-
tions now about his car that came in and the stew-
ard.
A. Yes.
Q. Was the benefits of being a Teamster dis-
cussed while you all were on the property?
A. Well, he brung out the fact that-well, I knew
the guy-.
Q. While you were over there in that area, did
you hear him talk about any benefits of being a
Teamster?
A. Well, he was talking to Marshall, and Mar-
shall used to be a Teamster. They were, you know,
talking about a few things. He said that at the
power plant, whenever Major Joe Rainer (phonetic)
over the power plant got in a motorcycle accident,
that the Teamsters were the only one that took up a
collection for him, and that they took up a collec-
tion of about $1200. That he was out of work and
they were the only ones to help him.
I know Joe Ranier because I worked under him
at the power plant.
Q. I understand.
1265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But at the time that he (Blanco) was there, had
everybody finished voting?
A. No. As a matter of fact, while he was there
McDuffy was coming in in the sand truck. And
Marshall said, "Here comes McDuffy," said, "He
can't vote; he hasn't been here long enough this
time." Said, "He's worked here several times."
And he said, "Why can't he vote?"
Q. "He," being who?
A. The agent or steward. I figured he was a
steward. Said, "Well, why can't he vote." Said,
"Well, he hasn't been here long enough." Said, "He
hasn't been here long enough this time. He can't
vote."
And he came in and voted. They didn't contest
him or anything.
Q. Did the steward say anything in response?
A. Just other than questioning why he couldn't
you know. And he did say that if he hasn't been
there long enough, then he isn't eligible to vote.
Manny Blanco was called by the Union. Blanco admit-
ted that he pulled up within 100 yards or better of the
polling place around 5 p.m. on March 25. Blanco was
looking for Business Agent Morale to pick up some T-
shirts to use in a Easter Seal charity drive. Blanco testi-
fied that he asked some of the men there at the Respond-
ent's terminal the whereabouts of the business agent. He
also responded to the question as to whether "they were
hiring at Hutchinson Island. Blanco denied discussing
economic benefits that [the employees] would enjoy if
they voted for a union."
1. Discussion
I credit the testimony that Manny Blanco drove up
and stopped in the proximity of the polling area shortly
after 5 p.m. on the day of the election. Additionally, I
credit Ronald Wentz' testimony that Blanco mentioned
that the Teamsters Union was instrumental in taking up a
collection of about $1200 for an employee at the "power
plant" that was injured in a motorcycle accident. Also,
there was discussion as to whether employee McDuffy
had worked for the Respondent long enough to be eligi-
ble to vote. Blanco suggested that if McDuffy had not
"been there long enough, then he isn't eligible to vote."6
Wentz' testimony in this regard was specific and logical
under the circumstances. I was impressed with his recol-
lection of specifics as to the conversation and his specific
testimony was only generally rebutted.
2. Conclusion
Blanco admitted that he has been steward for Local
769 for 9 years. Although he worked for another em-
ployer, Blanco became involved in the organizing activi-
ties of the Respondent's terminal in late 1982 when he
picked up Harry Turer's petition to better working con-
ditions. Thereafter, Blanco appeared at a union meeting
along with some of Respondent's employees to deliver
Turer's petition to Business Agent Morale. Blanco also
6 Nevertheless, the record reflects that McDuffy voted without chal-
lenge.
admitted that part of his job as steward involves organi-
zational activities. Blanco admitted that he was told an
election was being held at the Respondent's Ft. Pierce
terminal during the time he arrived on March 25.
Under the above circumstances, Blanco was, in the
eyes of the Respondent's employees, an agent of Local
769.
The Charging Party argues that Blanco appeared near
the polling area after everyone voted. However, the
record, through the testimony of Ronald Wentz, reveals
that at least one employee, McDuffy, entered the polls
after Blanco arrived.
Despite the above, the full record clearly demonstrates
that Manny Blanco did not engage in electioneering near
the polls. I fully credit Blanco's testimony that the sole
reason for his appearance at the Respondent's terminal
was to pick up T-shirts for a charity function. Even
though Blanco discussed the union fund raising for a dis-
abled employee and related that an employee may not be
eligible to vote, the testimony of the Respondent's wit-
nesses, Wentz and Milner, illustrates that their conversa-
tion was casual. Moreover, unlike the situation in Mil-
chem, Inc., 170 NLRB 362 (1968), Blanco did not talk
with employees waiting to vote. His brief conversation
(not prolonged as in Milchem) was with two employees
that had already voted. There was no evidence which
showed that anyone was aware of Blanco's presence in
the vicinity prior to their voting.
Moreover, I am convinced that Blanco remained a
substantial distance from the polls. Blanco testified that
he was 100 yards or more from the polls.
Therefore, this situation falls within the rule of Boston
Insulated Wire Co., 259 NLRB 1118 (1982), where the
Board held:
Electioneering must be appraised realistically and
practically, and should not be judged against theo-
retically ideal, but nevertheless artificial, standards.
I fail to see how Blanco's presence could have possibly
affected the March 25 vote. Therefore, I would deny the
Respondent's objection.
In view of my finding that the evidence does not sup-
port any of the Respondent's objections, I recommend
that the objections be overruled and the election results
certified.
CONCLUSIONS OF LAW
I. The Respondent, Dickerson Florida, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Teamsters Local Union No. 769, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By interrogating its employees concerning their
union activites and protected concerted activities, by
threatening its employees with discharge because they
are involved in union activities, by creating an impres-
sion of surveillance of its employees' union activities by
telling them that employees are reporting those union ac-
tivities to management and supervision, and by threaten-
1266
DICKERSON FLORIDA, INC.
ing to send its employees "down the road" because they
engaged in protected concerted activities, the Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. The Respondent has not otherwise engaged in
unfair labor practices as alleged in the complaint.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommended
ORDER 7
The Respondent, Dickerson Florida, Inc., Stuart and
Ft. Pierce, Florida, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed them by Sec-
tion 7 of the Act in violation of Section 8(a)(1) of the
Act by interrogating its employees regarding their union
activities and protected concerted activities, by threaten-
ing its employees with discharge because they are in-
volved in union activities, by creating an impression of
surveillance of its employees' union activities by telling
its employees that other employees are reporting the
union activities to management and supervision, and by
threatening to send its employees "down the road" be-
cause they engaged in protected concerted activities.
(b) In any other like or related manner interfering
with, restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Post at its Ft. Pierce, Florida facilities copies of the
attached notice marked "Appendix." 8 Copies of said
7 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
8 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
notice on forms provided by the Regional Director for
Region 12 shall, after being signed by the Respondent's
authorized representative, be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material, and
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPL.OYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees about their
activities on behalf of Teamsters Local Union No. 769,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization.
WE WILL NOT threaten our employees with discharge
because they are involved in union activities.
WE WILL NOT create an impression of surveillance of
our employees' union activities by telling them that em-
ployees are reporting their union activities to manage-
ment and supervision.
WE WILL NOT threaten to send our employees "down
the road" because they engage in protected concerted
activities including signing a paper protesting working
conditions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees with respect to their
exercise of rights guaranteed them by Section 7 of the
National Labor Relations Act.
DICKERSON FLORIDA, INC.
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