Mark Lines, Inc.

National Labor Relations Board - Board Decisions

May 12, 1981

255 N.L.R.B. 1435 (N.L.R.B. 1981)

MARK LINES, INC. 1435
Mark Lines, Inc. and Amalgamated Transit Union,
AFL-CIO-CLC. Cases 6-CA-13135 and 6-
RC-8640
May 12, 1981
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
On December 9, 1980, Administrative Law
Judge Joel A. Iarmatz issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.'
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, 2
and conclusions 3 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Mark Lines,
Inc., Plum Boro, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
IT IS FURTHER ORDERED that the election held at
Plum Boro, Pennsylvania, on February 14, 1980, in
Case 6-RC-8640 be, and the same hereby is, set
aside, and that Case 6-RC-8640 be, and the same
hereby is, severed from Case 6-CA-13135 and re-
manded to the Regional Director for Region 6 for
the purpose of conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I Respondent has also requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We also note that the correct citation to Super Thrift Markets. Inc. /a
Enola Super Thrift (at sec. IV of the Administrative Law Judge's Deci-
sion) is 233 NLRB 409 (1977).
3 In the absence of exceptions thereto, we adopt, pro forma. the Ad-
ministrative Law Judge's dismissal of the allegation that Respondent vio-
lated Sec. 8(aXl) of the Act when Supervisor Jack Tressler asked em-
ployee Virginia Thielman what she thought about the Union. We also
adopt, proforma, the Administrative Law Judge's dismissal of the allega-
tion that Respondent violated Sec. 8(aXl) of the Act when Supervisor
Thomas Tangretti questioned several employees as detailed in the Admin-
istrative Law Judge's Decision.
255 NLRB No. 191
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: Upon
an original unfair labor practice charge filed on February
8, 1980, a complaint was issued on March 31, 1980, alleg-
ing that Respondent independently violated Section
8(a)(1) by coercive interrogation, threats, surveillance,
creating the impression of surveillance, and by informing
employees that designation of a union would be futile. In
its duly filed answer, Respondent denies that any unfair
labor practices were committed.
Pursuant to a representation petition filed on Novem-
ber 14, 1979, in Case 6-RC-8640, a Decision and Direc-
tion of Election was issued by the Regional Director for
Region 6 on January 14, 1980. By virtue thereof, a
secret-ballot election was conducted on February 14,
1980, among the employees in the unit found appropri-
ate. The results revealed that, of 117 eligible voters, 45
ballots were cast for, and 45 against, representation by
the Petitioner-Union, with 17 challenged ballots, which
were determinative. Additionally, the Charging Party-
Petitioner thereafter filed timely objections to the elec-
tion. Following investigaton, on June 17, 1980, the
Acting Regional Director for Region 6 issued his "Sup-
plemental Decision on Challenges and Objections, Order
and Notice of Hearing." Pursuant thereto, Objections 1,
2, and 3 were overruled, However, with respect to Ojec-
tion 4, which generally alleges that, "by these and other
acts, the Employer engaged in conduct which improper-
ly interfered with the conduct of the election," the
Acting Regional Director concluded that evidence de-
veloped showed misconduct raising substantial and mate-
rial issues of fact which, like the determinative chal-
lenges, warranted a hearing. Accordingly, by order
dated June 17, 1980, Case 6-RC-8640 was consolidated
with Case 6-CA-13135 for the purpose of hearing,
ruling, and decision by an administrative law judge.
Said hearing was conducted before me in Pittsburgh,
Pennsylvania, on August 26, 1980. After close of the
hearing, a brief was filed by Respondent-Employer.
Upon the entire record in this proceeding, including
my direct observation of the witnesses while testifying
and their demeanor, and consideration of the post-hear-
ing briefs, I find as follows:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT EMPLOYER
Mark Lines, Inc., is a Pennsylvania corporation en-
gaged in the transport by motor bus of school children in
various school districts within the Commonwealth of
Pennsylvania.
I The 17 challenges no longer present a viable issue. At the hearing,
challenges to the 12 ballots made by the Board agent and challenges to
the ballots of 5 voters made by the Petitioner-Charging Party were with-
drawn. Accordingly, pursuant to the direction by me. the 17 unresolved
challenges, on September 11, 1980, were opened and counted. The final
tally disclosed that. of 117 eligible employees. 59 cast ballots against, and
48 for, representation by the Petitioner. There were no further unre-
solved challenged ballots.
MARK LINES. NC. 435
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the 12-month period ending January 31, 1980,
Mark Lines, Inc., in the course and conduct of said oper-
ation, derived gross revenues in excess of $250,000, and
purchased goods and materials valued in excess of
$50,000 from enterprises within the Commonwealth of
Pennsylvania, each of which enterprises received said
products, goods, and materials directly from points out-
side the Commonwealth of Pennsylvania.
The complaint alleges, the answer admits, and I find
that Respondent Employer is, and has been at all times
material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE ABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Amalgamated Transit Union, AFL-CIO-CLC, is
now, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the
Act.
III. CONCLUDING FINDINGS
A. The Issues
At stake in this proceeding is the validity of an elec-
tion in which the employees rejected union representa-
tion. A rerun election is sought upon allegations in the
complaint, which also fall within the broad penumbra of
the Union's Objection 4 in Case 6-RC-8640. Such allega-
tions are limited to independent 8(a)(1) violations which
were imputed to Thomas Tangretti, Respondent's direc-
tor of administration, Terminal Manager Jack Tressler,
and Ernie Markitell, Respondent's president.
B. Background
It appears that Respondent holds contracts for the
transport of school children in 14 school districts. How-
ever, the sole facility involved here is the Employer's
terminal located in Plum Boro, Pennsylvania. From that
facility, the school districts of Plum Boro and Burrell
only are serviced. It appears that drivers are regularly
assigned to either of the separate school districts. It also
appears that Plum drivers came into Respondent's
employ within a 12-month period preceding the instant
organization drive. Previously, that district was served
by a competitor, the former employer of Plum drivers
retained by Respondent. From its inception the organiza-
tion drive apparently was waged primarily among the
Plum drivers, for, the unit sought by the Union in Case
6-RC-8640 was limited to them. However, contrary to
the Union, Burrell drivers were included by the Regional
Director who determined that a single overall unit of all
drivers assigned to the Plum Boro facility was appropri-
ate.
Beyond the foregoing, there is a dearth of factual de-
velopment as to the nature and initiating causes of the
organization campaign.
C. Case 6-CA-13135
Miscellaneous 8(a)(1) Allegations
1. The December 1979 conversation between
Patricia Ruggiero and Terminal Manager Tressler
It is alleged that on December 14, 1979,2 Respondent
violated Section 8(a)(1) by Tressler's threat of unspeci-
fied reprisal. Testimony in support of the aforesaid alle-
gation was offered through Patricia Ruggiero, a driver
for the Plum school district. According to her testimony,
while she was assisting a new driver, Maria Brown, who
sought to bid on a charter trip, Tressler approached, and
said, "Thanks a hell of a lot, why don't you keep your
big mouth shut," adding that Ruggiero "was on thin
ice." When Ruggiero asked Tressler if he were harassing
her, he turned and went away. Tressler admitted that, on
the occasion in question, he did in fact interfere, telling
Ruggiero to let Brown pick her own charters and that
the latter did not need outside help. He denied telling
Ruggiero that she was on thin ice. I do not believe Rug-
giero. In any event, her testimony would hardly merit an
unfair labor practice finding. The alleged reference to
"thin ice" was not expressly linked with protected activi-
ty and, elsewhere, evidence is lacking which would sup-
port an inference that such was the case. Ruggiero ap-
parently was not among those called by the Union to
support its position at the preelection hearing, 3 and there
is no evidence that, prior thereto, she engaged in union
activity or that Respondent had reason to suspect that
she was so engaged. The 8(a)(l) allegation in this respect
shall be dismissed.
2. The January 1980 conversation between Tressler
and Virginia Thielman
Thielman, a driver assigned to the Plum district, testi-
fied that, in January 1980, she was elected to the Plum
drivers' committee. Although the nature of this commit-
tee is not otherwise defined on the record, it presumably
was a support arm of the Union in the organization
effort. Tressler testified that, shortly after her January
election to said committee, she was told by Tressler,
"[N]ow that you're on the committee, you are walking
on thin ice." Other than the foregoing, Thielman had no
recollection of the circumstances surrounding this
remark or any other part of the exchange with Tressler
on that occasion.
Thielman goes on to testify to a further conversation
with Tressler a few days later. She asserts that Tressler
took the opportunity to explain that "he worked union
shops before and he didn't think it was going to work
here," whereupon, according to Thielman he asked,
"what I thought about the Union...." Thielman claims
to have responded by indicating that she "stood on the
5th Amendment." With that, according to Thielman, the
conversation ended.
2 All dates refer to 1980 unless otherwise indicated.
' Although the preelection hearing on the Union's representation peti-
tion was held on December 14, 1979. Ruggiero did not attend.
MARK LINES, INC. 1437
Thielman's testimony as to these conversations is not
squarely denied. Although Tressler specifically denied
ever having called Thielman into his office for the pur-
pose of questioning her concerning her feelings relative
to the Union, and indicated that Thielman habitually and
frequently entered his office on her own business, Thiel-
man's testimony was in all other respects allowed to
stand uncontradicted. I had no reason to disbelieve the
material testimony of this incumbent employee and,
based thereon, I find that Respondent independently vio-
lated Section 8(a)(1) by coercively suggesting that her
employment was imperiled by her support of the Union.4
However, I dismiss the allegation based on the subse-
quent interrogation as to her reasons for supporting the
Union as isolated, not shown to evolve from any system-
atic pattern of interrogation, and as occurring with re-
spect to an employee whose union activity had previous-
ly become manifest.5
3. The union meeting of January 27, 1980
On January 27, a union meeting was scheduled in re-
sponse to the Regional Director's Decision and Direction
of Election. Contrary to the Union's position, the Re-
gional Director, after a hearing, concluded therein that
the unsought Burrell district drivers were to be included
in the appropriate unit. Hence, the Union on January 27
met with the Burrell drivers, to inform them of the im-
plications of their inclusion in the organization drive.
Several allegations relate to this meeting and its after-
math. First it is alleged that Respondent violated Section
8(a)(1) by maintaining surveillance thereof. This allega-
tion is unsubstantiated. It is true that certain Burrell driv-
ers who attended were identified as having openly made
recordings of what transpired at that meeting. It also ap-
pears that on the next day the recording was turned over
to Tressler, who listened to at least part of same. None-
theless, the evidence fails to disclose that employees in-
volved in taping the meeting acted as agents, supervisors,
or representatives of Respondent, or that they did so
under direction, authorization, or request of anyone
having such status. Accordingly, as there is no evidence
on which a conclusion could be founded that the em-
ployee activity involved was chargeable to Respondent,
the allegation of surveillance shall be dismissed.
However, the complaint further alleges that the tape
of the meeting was ultimately used in a manner violative
of Section 8(a)(1). Thus, undisputed testimony offered by
the General Counsel establishes that on January 28, the
day after the meeting, Tressler played back the tape,
which had been officiously provided by certain employ-
ees. He did so in his office, with the door open, and the
replay was loud enough so that employees outside and in
adjacent areas could also hear. It would seem from the
General Counsel's own testimony that all employees who
4 Respondent, in its post-hearing brief, argues that the foregoing viola-
tions could have had no impact upon the election of February 10, as they
occurred subsequent thereto. This claim is based upon a faulty interpreta-
tion of the record. Both conversations were placed by Thielman in Janu-
ary 1980 shortly after her election to the "Plum Committee" for the driv-
ers.
6 Cf. PPG Industries Inc.. Lexington Plant. Fiberglass Division. 251
NLRB 1146 (1980), where the questioning extended to a number of em-
ployees.
attended the meeting would necessarily have been aware
of the taping thereof. Furthermore, Tressler's opportuni-
ty to hear the tapes was not shown to have been pro-
vided by anything more than a spontaneous gesture on
the part of employees. Nonetheless, Tressler in availing
himself of the opportunity was obliged to do so in a fash-
ion guarding against any impingement of the employees'
Section 7 rights. Thus, while the Act, in the circum-
stances, was not offended merely by Tressler's listening
to the tapes, he did so in a fashion which plainly alerted
employees that union activity conducted beyond the eye
of management was not necessarily beyond its ear. As
such the conduct of Tressler tended to impede employ-
ees in the exercise of the rights guaranteed them by the
Act and I find that the overt use of the tapes in an area
frequented by employees and adjacent to an area utilized
by drivers as a gathering place, irrespective of his intent
or customary practice, violated Section 8(a)(1) of the
Act by creating the impression that union activity was
subject to surveillance.
The complaint further alleges that Tressler, also on
January 28, threatened employees with more onerous
working conditions as well as other more stringent en-
forcement of work rules and other unspecified reprisals if
they selected the Union.
The General Counsel attempted to substantiate these
allegations through testimony of drivers Thomas Davis,
Ruggiero, Bentz, and Thielman.
Thus, Davis, a driver for the Burrell school district,
testified that he attended the union meeting on January
27, and that the next morning at 6 o'clock, he was at the
Plum garage to gas his bus. He related that, after doing
so, he turned in some paperwork whereupon Tressler
stated, "Tom, I got enough on you to fire you." Davis
claims to have mentioned the fact that the union meeting
the previous night was taped and requested that Tressler
play the tapes because, whatever Davis said at the meet-
ing, he had mentioned to Tressler previously. Tressler
apparently stated, "[N]ever mind about the tapes,"
charging instead that files on Davis disclosed that Davis
was the subject of complaints and that the latter's serv-
ices were unwanted in the Burrell district as well as
other districts serviced by Respondent. Davis replied
that that was strange, as he had never heard that before,
and would like proof. He claimed also to have requested
to meet with Markitell, but that Tressler indicated that
this was not possible. According to Davis, at some point
in their conversation, Tressler alluded to the fact that
"Markitell wouldn't want a union in here." According to
Davis the conversation ended with his indicating that
Tressler was the boss but that, if he did anything wrong,
Tressler had better show him.
Tressler indicated that he could not recall, specifically,
a meeting with Davis on January 28, but admits that this
was possible. He denied having made any statement that
he had enough on Davis to fire him. In this instance, I
was inclined to believe Tressler. Davis was a thoroughly
incredible witness. No indication exists that Davis had
manifested union support prior to January 28. And, al-
though he attended the union meeting on January 27,
other Burrell district drivers had done so as well, and it
MARK LINES, INC. 37
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is inferrable, on this entire record, that this group was
not generally regarded as supportive of the Union's inter-
est in the campaign. Davis, though having attended and
asked questions during the meeting, expressed no opin-
ions, and indeed the only specific example of his posture
therein was his questioning the Union as to why the Bur-
rell drivers had been brought into the vote. It is also
noted in this connection that testimony of certain other
witnesses called by the General Counsel strongly implies
that Respondent's agents did not learn of what had tran-
spired at the union meeting until later on the morning of
January 28. Furthermore Davis impressed me as a gener-
ally unreliable witness, prone to relate argumentation
garnered from imagination, rather than the facts as they
occurred. His testimony did not ring true and generally
struck me as inaccurate. Accordingly, the 8(a)(1) allega-
tion based on his testimony shall be dismissed.
Ruggiero testified to another incident involving
Tressler which occurred later that morning. Thus, she
related that Tressler approached her as she was sitting
with a group of drivers and stated, "I understand you
had a meeting with the Burrell drivers yesterday." Rug-
giero acknowledged that this was so, adding that
Tressler would "have 3 hours of enjoyable listening be-
cause . . . they taped the meeting." Tressler, according
to Ruggiero, then pointed his finger at her and said,
"[T]he day after the election the Union goes in . . . Mr.
Markitell will put you on strike . . I'll bet you my pay
against you [sic] that you'll be on strike the day after the
Union gets in." Ruggiero further observed that Tressler
also indicated that Burrell buses, which the Company
permitted to be housed outside the Plum facility at loca-
tions convenient to the Burrell drivers, would be relo-
cated if the Union were designated, at fixed sites, includ-
ing the Plum garage.6 Counsel for the General Counsel
called Virginia L. Bentz and Thielman to corroborate
Ruggiero's testimony. 7
Bentz' attempt at corroboration was as follows:
Jack approached us and said that if the Union gets
in that Mr. Markitell would put us on strike the
next day. He also said there would be reprimands
and suspensions for what the drivers was getting
away with now and also that our buses would be
moved further away, located at different places so
that we would have further to travel to get our
buses.
According to Bentz, in a subsequent conversation be-
tween Tressler and Ruggiero, he indicated that he would
bet his pay against her pay that the employees would be
out on strike the day after the Union was designated.
Virginia Thielman, also a Plum district driver, testified
that, though she witnessed a conversation, all that she
overheard was Tressler state "he would bet Mrs. Rug-
6 At the time, drivers for the Burrell district were not required to
return their buses to the Plum garage each evening. Instead, the Compa-
ny rented space in Burrell, and some could even take their equipment
home. The statement imputed to Tressler clearly implied that a change in
practice adverse to the Burrell drivers would accompany a union victory.
7 Ruggiero testified that Bentz was a member of the Plum district em-
ployee committee, and I assume, based thereon, that she was assigned to
the Plum school district.
giero, his week's pay against hers that if the Union got in
Mr. Markitell would have us on strike the next day."
Tressler acknowledged a conversation with Ruggiero
on January 28. He claims, however, that with respect to
the possibility of a strike he simply said, "I will bet you
that if the Union wins, they're going to have you out on
strike the next day." He denied mentioning Markitell's
name or making any statements concerning reprimands
or suspensions.
I was inclined to believe Tressler over Thielman, Rug-
giero, and Bentz. Thielman's recollection of the incident
impressed me as a bit too selective and Bentz' recollec-
tion seemed overreached. Thus, Bentz alludes to a clear
threat of reprisal concerning Respondent's disciplinary
approach, which neither Thielman nor Ruggiero con-
firmed. Furthermore, Bentz' testimony as to the change
in bus location differed substantively from that described
by Ruggiero. With respect to the strike issue, the testi-
mony of all three was suspect as a product of hurried
concoction rather than independent presentations of
what each separately witnessed and independently re-
called. 8 Additionally, on the basis of all the evidence, I
find it more likely that Tressler would have placed the
onus upon the Union, rather than Markitell in arguing
that a strike would ensue." On balance, however, I am
inclined to credit Ruggiero and Bentz with respect to the
threat to eliminate overnight parking privileges. Thus,
Tressler, who had no independent recollection of the
conversation with Ruggiero on January 28, did concede
that he had been asked by a Burrell district driver what
would happen if the Union got in, whereupon Tressler
admittedly responded by indicating that it was possible
that all drivers would have to work out of the Plum fa-
cility because "everybody is going to be treated
equal[ly]." This statement was substantively akin to that
imputed to Tressler by Ruggiero, and plainly implied
that Burrell district drivers risked curtailment of a work
privilege merely by designation of the Union. Notwith-
standing my misgivings concerning the quality of the
General Counsel's proof, considering Tressler's admis-
sion I find that such a statement was made in Ruggiero's
presence on January 28. Accordingly, I find that Re-
spondent thereby violated Section 8(a)(l) of the Act.
A final allegation pertaining to January 28 evolves
from an alleged instance of coercive interrogation attrib-
uted to Thomas Tangretti, Respondent's director of ad-
ministration. According to Tangretti, he had a conversa-
8 Consistent with this overall analysis was the fact that Ruggiero testi-
fied that other employees present on the occasion in question came to her
seeking clarification of what Tressler had said concerning a strike. Rug-
giero, herself, may well have misunderstood the precise nature of
Tressler's remark and her interpretation may well be the source of the
erroneous testimony related by the corroborating witnesses offered by
the General Counsel.
9 It is entirely possible that Ruggiero misunderstood Tressler's remark
on that occasion, or later twisted his statement to support an argumenta-
tive confrontation with Markitell during the Company's antiunion meet-
ing held shortly before the election. It is noted in this connection that all
agree that at said meeting Ruggiero, in addressing Markitell, accused
Tressler of having made the statement that Markitell would have the em-
ployees on strike the day after they designated the Union. All witnesses
similarly agree, though in varying degrees, that Tressler reacted vehe-
mently in denying that any such statement was made.
MARK LINES, INC. 1439
tion with Tressler that morning and was informed by the
latter that the Union met with the Burrell drivers the
previous evening and that during the meeting the Union
advised those drivers that the Union did not seek them
and that, if they did not want to be involved, they
should not appear to vote in the election. According to
Tangretti, he then sought confirmation of this charge by
questioning several employees as to what was said at the
meeting. According to Tangretti, the employees con-
firmed what Tressler had reported. The General Counsel
contends that, by questioning of these employees, Re-
spondent violated Section 8(a)(1) of the Act. On the
basis of the meager evidence adduced with respect to
this violation, it is assumed that Tangretti and Tressler
did in fact receive information that Burrell drivers may
have been misled by the Union. Any suggestion by the
Union that the latter not vote would have been calculat-
ed to dilute influence of employees not strongly sympa-
thetic to the organizational cause and to enhance unfairly
the Union's opportunity to garner a majority during the
election. Respondent had a legitimate interest in assuring
that employees were not misled, by verifying whether in
fact such an appeal had been made, and if so to correct
it. Although there is no indication that the questioning
was accompanied by assurances against coercion, a
number of factors warrant a relaxation of such require-
ment on these premises. First, the immediacy of Tangret-
ti's reaction to the possibility of such untoward conduct
by the Union was perfectly understandable. Second, the
drivers queried were apparently from the Burrell district
and not within the prounion group. In these circum-
stances, to presume a coercive effect is to prefer techni-
cality to reality. Accordingly, I find that the General
Counsel has not established by a preponderance of the
evidence that Tangretti's questioning of employees as to
the specific representation made by the Union at the
meeting of January 27 violated Section 8(a)(1).
4. Tressler's alleged interrogation of Myrtle Burton
Burton ascribed to Tressler an alleged instance of
8(a)(l) interrogation. Burton was a driver assigned to the
Plum district. She testified that, a week or two before
the election, she was in Tressler's office, discussing gen-
eral issues, when the Union was mentioned. Tressler in
the course of that conversation allegedly stated that "the
Union is not going to do anything for you that we can't
do for you," and then, assertedly, asked Burton what her
opinion was. Burton opined that she had felt that way
previously but that it had not worked out. Tressler then,
allegedly, asked, "Are you for the Union?" Burton re-
plied affirmatively. Burton's testimony was uncontradict-
ed and credible. Based thereon, there being no evidence
that Respondent had any legitimate purpose in attempt-
ing to discern her union sentiment, Tressler's conduct
constituted coercive interrogation violative of Section
8(a)(1) of the Act.
5. The antiunion meeting
It is alleged that on or about February 12 Respondent
violated Section 8(a)(1), through President Markitell's
having "informed its employees that it would be futile
for them to select the Union as their bargaining repre-
sentative." In this connection, it is undisputed that a few
days before the election Markitell addressed a meeting of
Plum drivers, urging them to vote against union repre-
sentation. The only evidence as to points made by Mar-
kitell on that occasion appeared in the testimony of Pa-
tricia Ruggiero and Virginia Thielman. According to
Ruggiero, Markitell declared that the Union would pre-
clude the employment of retirees and part-time drivers,
that Burrell drivers would be awarded greater seniority
than Plum drivers, and added that the Union would put
the drivers on strike. Ruggiero, in effect, conceded that
Markitell described the impaired conditions as originat-
ing with union practices and policy. Similarly, Thielman
averred that Markitell stated, "All that Union could get
for us was we would be paying dues . . . and that any-
body that was a pensioned man would probably no
longer be driving because it happened in other districts
where the Union went in." Respondent argues that Mar-
kitell had simply expressed his opinion as to conse-
quences of unionization in a fashion protected by free
speech guarantees. However, the evidence on which the
General Counsel relies, though sketchy, and at least in
part offered through a witness of less than impressive re-
liability (Ruggiero) was not rebutted, and hence Marki-
tell's references to detrimental work changes in the event
of unionization are confirmed by uncontradicted proof.
While some doubt lingers as to whether these utterances
were not in fact made in the context of argumentation
protected by Section 8(c) of the Act, the failure of Re-
spondent to adduce proof in substantiation thereof pre-
cludes a finding that protected argumentation, devoid of
threat, express or implied, was involved. Obviously, the
adverse consequences alluded to, even if consistent with
union policies, could obtain fruition only through em-
ployer assent during the course of collective bargaining.
The Board has held that such statements, without further
clarification by the employer, "could reasonably be re-
garded by employees as a threat of more onerous work-
ing conditions and of a reduction in benefits if they des-
ignated the Union as their collective bargaining repre-
sentative." See Sportspal, Inc., 214 NLRB 917 (1974). As
Markitell's pronouncements were not shown to have
been made under conditions permitting reasonable evalu-
ation by employees as founded upon "demonstrably
probable consequences beyond [Respondent's] con-
trol," 1 0 in this respect, I find that Respondent violated
Section 8(a)(1) of the Act.
Iv. CASE 6-RC-8640
It has heretofore been found that during the critical
preelection period Respondent Employer engaged in
unfair labor practices, which substantiate the general al-
legations of misconduct set forth in Objection 4. Accord-
ingly, Petitioner's Objection 4 is sustained to the extent
that Respondent impeded free choice by coercive inter-
rogation, by creating the impression of surveillance, by
threatening to eliminate overnight parking privileges pre-
viously extended to Burrell drivers, by telling an em-
In .VL.R B. Gisel/ Packing Co.. Inc., 395 U.S. 579. 618 (1969).
MARK LINES. INC.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee that she was on "thin ice" because of her designa-
tion to an employee committee, and by declaring that
unionization would lead to elimination of retired and
part-time drivers and to an impairment of seniority
among Plum drivers. Under Board precedent such un-
lawful conduct is sufficient to warrant a rerun election.
The Board, in Super Thrift Markets, Inc., t/a Enola Super
Thrift, 223 NLRB 409 (1977), recited that the only ex-
ception to its policy of setting aside elections in the face
of unfair labor practices during the critical preelection
period is "where the violations are such that it is virtual-
ly impossible to conclude that they could have affected
the results of the election." No such conclusion is war-
ranted here, and accordingly the first election shall be set
aside and a rerun directed at such time as the Regional
Director deems appropriate.
CONCLUSIONS OF LAW
I. Mark Lines, Inc., is an employer engaged in com-
merce and an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Transit Union, AFL-CIO-CLC, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By coercively interrogating an employee concerning
her union activity, by creating the impression that union
activity is subject to surveillance, by threatening an em-
ployee with reprisal because of her participation in activ-
ity protected by the Act, and by threatening employees
with detrimental changes in conditions of work if they
designated the Union, Respondent violated Section
8(a)(1) of the Act.
4. By the conduct set forth in paragraph 3, above, Re-
spondent has engaged in preelection misconduct invali-
dating the election conducted on February 14, 1980.
5. The unfair labor practices found in paragraph 3,
above, are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that it
cease and desist therefrom and take certain affirmative
action found necessary to effectuate the policies of the
Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER "
The Respondent Employer, Mark Lines, Inc., Plum
Boro, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from coercively interrogating em-
ployees concerning union activity, creating the impres-
"I In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
sion that union activity is subject to surveillance, telling
employees that working conditions would be altered to
their detriment upon designation of a union, telling em-
ployees that their jobs would be jeopardized by partici-
pation in activity protected by the Act, or in any 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 necessary to
effectuate the policies of the Act:
(a) Post at its facility in Plum Boro, Pennsylvania,
copies of the attached notice marked "Appendix."12
Copies of said notice, on forms provided by the Regional
Director for Region 6, shall be posted by Respondent
immediately upon receipt thereof, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the election conducted
on February 14, 1980, be, and it hereby is, set aside, and
that Case 6-RC-8640 be severed and remanded to the
Regional Director for Region 6 for the purpose of con-
ducting a rerun election at such time as he deems appro-
priate.
12 In the event that this Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT interrogate employees concerning
their union activity.
MARK LINES, INC. 1441
WE WILL NOT create the impression that the
union activity of employees is subject to surveil-
lance.
WE WILL NOT tell employees that their jobs are
in jeopardy because they have engaged in activity
protected by the National Labor Relations Act.
WE WILL NOT tell our employees that their con-
ditions of work will be changed to their detriment if
they designate a union.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion of the Act.
MARK LINES, INC.