Mike Yurosek & Son, Inc

National Labor Relations Board - Board Decisions

Feb 14, 1989

292 N.L.R.B. 1074 (N.L.R.B. 1989)

1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mike Yurosek & Son, Inc and General Teamsters
& Food Processing Local 87 , International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , AFL-CIO,
Petitioner Case 31-RC-6084
February 14, 1989
DECISION AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
The National Labor Relations Board, by a three
member panel , has considered objections to an
election held December 17, 1986, and the hearing
officer's report recommending disposition of them
The election was conducted pursuant to the Acting
Regional Director's Decision and Direction of
Election The revised tally of ballots shows 292 for
and 290 against the Petitioner, with 1 challenged
ballot, an insufficient number to affect the results
The Board has reviewed the record in light of
the exceptions and brief and has adopted the hear-
ing officer's findings 1 and recommendations only
to the extent consistent with this Decision and Di-
rection of Second Election
The Employer contends that Western Confer-
ence of Teamsters Representative Gunder Hansen,
Petitioner's agent , engaged in surveillance by pho-
tographing employees while they engaged in cam-
paign activities at the front gate to the Employer's
plant The hearing officer found that Hansen's con-
duct was not objectionable We disagree 2
Virtually everyday during the campaign , Hansen
took photographs with a small pocket camera of
campaign activity, at the entrance gate, by both
prounion and antiunion employees He testified that
he took pictures (1) because the subjects wished to
be photographed, and (2) to keep a record of an-
tiunion activity should the Union decide later to
file objections or unfair labor practices Hansen
told antiunion activist Brogdon that "We've got it
on film, we know who you guys are after the
Union wins the election some of you may not be
here "3
i The Employer has excepted to some of the hearing officers credibil
ity findings The Board s established policy is not to overrule a hearing
officer s credibility resolutions unless the clear preponderance of all rele
vant evidence convinces us that they are incorrect Stretch Tex Co 118
NLRB 1359 1361 (1957) We find no basis for reversing the fmdtngs
2 Because we find merit in this objection we find it unnecessary to
pass on the hearing officers findings with respect to the remaining objec
tions
3 Brogdon s testimony on direct and cross-examination was consistent
but vaned slightly as to the exact words used by Hansen The version
credited by the hearing officer is a composite of these variations and is
consistent with each of them
The hearing officer recommended that the objec
tion be overruled She found that in the absence of
threatening or coercive acts indicating that the
Union would punish antiunion campaigners, the
filming of public campaign activity, even if it in
cludes an occasional photograph of employees en-
tering or leaving the gate, would not constitute im-
permissible surveillance
In Pepsi Cola Bottling Co, 289 NLRB 736 (1988),
the Board found that the appearance of videotap
ing by a union representative of at least two em-
ployees at a rally the day before the election gave
the employees the impression that the pictures
would be used for future reprisals against them
The Board noted that no legitimate explanation for
the videotaping was offered to the employees at
the rally, and that none was proffered at the hear-
ing Under these circumstances the Board conclud-
ed that the conduct of the union representative was
intimidating and would reasonably tend to interfere
with employee free choice in the election Similar-
ly, in the instant proceeding the pictures of em
ployees were taken by a union agent and, like
Pepsi-Cola Bottling Co, no explanation was provid-
ed to employees while pictures were being taken to
assuage their fears that the pictures would be the
basis for future reprisals 4 Further, Hansen's re-
marks to Brogdon are arguably threatening, and
certainly do nothing to assure employees that the
pictures Hansen was taking would not be improp-
erly used
At the hearing Hansen attempted to explain that
he took pictures to have evidence of antiunion sup-
porter misconduct Contrary to the hearing offi
cer's findings, we conclude that this explanation is
belied by Hansen 's giving away of many photo-
graphs and the Union's acknowledgment that it did
not know the location of the negatives Therefore,
in the absence of a valid explanation, we find that
Hansen 's conduct in photographing employees was
objectionable 5
Accordingly, we find that the election held on
December 17, 1986, must be set aside and a new
election held
[Direction of Second Election omitted from pub-
lication ]
4 In Interstate Cigar Co 256 NLRB 496 ( 1981) relied on by the hear
ing officer the incidents in question were found to be isolated and did
not involve photographing of unit employees
5 Member Higgins finds it unnecessary to rely on Pepsi Cola. As noted
above while photographing antiunion activity Hansen commented to an
tmnion activist Brogdon that we ve got it on film we know who you
guys are after the Union wins the election some of you may not be
here In Member Higgins view the photographing of antiunion employ
ees accompanied by this statement could reasonably put employees in
fear that the pictures would be used for future reprisals and was therefore
objectionable
292 NLRB No 124