National League of Professional Baseball Clubs

National Labor Relations Board - Board Decisions

Feb 24, 2000

330 N.L.R.B. 670 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 670
The National League of Professional Baseball Clubs
The American League of Professional Baseball
Clubs and Major League Umpires Independent
Organizing Committee, Petitioner. Cases 2–RC–
22142 and 2–RD–1440
February 24, 2000
DECISION AND CERTIFICATION OF
REPRESENTATIVE
CHAIRMAN TRUESDALE AND MEMBERS FOX AND
HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to a mail-ballot
election conducted November 5–30, 1999, and the at-
tached hearing officer’s report recommending disposition
of them. The election was held pursuant to a Stipulated
Election Agreement. The tally of ballots shows 57 for
the Petitioner, 35 for the Intervenor,1 and none cast
against the participating labor organizations. There were
no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings and recommendations, and finds that a certifica-
tion of representative should be issued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Major League Umpires Independent Orga-
nizing Committee and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:

Included: All major league umpires employed
by the Employers.
Excluded: All other employees, and all guards,
professional employees, and supervisors as de-
fined in the Act.

APPENDIX
REPORT ON OBJECTIONS AND RECOMMENDATIONS
Pursuant to a Stipulated Election Agreement (the Agree-
ment) entered into by the above-named parties and approved on
October 28, 1999, an election by mail ballot was conducted
during the period of November 5–30, 1999, in the following
unit of employees:

Included: All major league umpires employed by the Em-
ployers. Excluded: All other employees, and all guards, pro-
fessional employees and supervisors as defined in the Act.

As will be discussed more fully in connection with the objec-
tions, the Employer and Intervenor dispute whether the 22 um-
pires who performed unit work through September 2, 1999,
have resigned or were discharged. This issue is the subject of
an arbitration hearing that is still in progress at the time of this
report. The Petitioner, Intervenor, and the Employer, however,
all stipulated that the 22 disputed employees were eligible to
vote in the election. The parties further agreed that the stipula-
tion of eligibility to vote was not binding on the parties in any
other proceeding apart from the processing of this petition.

1 Major League Umpires’ Association is the Intervenor in this pro-
ceeding.
The tally of ballots, which was made available to the parties
following the counting of the ballots on November 30, 1999,
showed the following results:

Approximate number of eligible voters................................93
Void ballots...............................................................................1
Votes cast for Major League Umpires Independent
Organizing Committee…...................................................57
Votes cast for Major League Umpires’ Association………35
Votes cast against participating labor organizations...............0
Valid votes counted.................................................................92
Number of challenged ballots...................................................0
Valid votes counted plus challenged ballots..........................92
Challenges are not sufficient in number to affect the results
of the election.

A majority of the valid votes counted plus challenged ballots
have been cast for the Petitioner.

On December 7, 1999, Major League Umpires’ Association,
the Intervenor or MLUA, timely filed objections to conduct
affecting the results of the election. The objections assert that
the National League and the American League of Major League
Baseball, herein the Employer, engaged in conduct that was
coercive, unlawful, and designed to interfere with the employ-
ees’ free choice as follows:

1. By threatening to act in a disparate and harsher
manner towards the employees’ chosen collective-
bargaining representative if that representative was the
Major League Umpires’ Association, while at the same
time promising harmonious and beneficial bargaining with
the Petitioner, the Major League Umpires Independent
Organizing Committee.
2. By engaging in conduct violative of the Act by pro-
viding assistance to Petitioner during the “critical period”
relevant in this matter. In particular, the Employer bar-
gained over the terms and conditions of the employees in
the unit, notwithstanding the fact that the MLUA is the
collective-bargaining representative for the employees in
question.
3. By engaging in conduct interfering with the free
choice of the employees in the election by failing and re-
fusing to bargaining in good faith with the MLUA during
the post-petition period.

In addition, Petitioner, by its officers and agents, advised em-
ployees that it had already been bargaining with the Em-
ployer, and advised employees of what it described as an al-
ready agreed-upon collective-bargaining agreement between
the Employer and the Petitioner.

Pursuant to Section 102.69 of the Board’s Rules and Regula-
tions, an initial investigation of the objections was conducted
under the direction and supervision of the Regional Director for
Region 2. Based on the evidence obtained in the preliminary
investigation, it was determined that a hearing was necessary to
resolve the substantial and material issues of fact and a notice
of hearing was issued on December 15, 1999. The notice of
hearing on objections outlined conduct occurring within the
330 NLRB 112
NATIONAL LEAGUE OF PROFESSIONAL BASEBALL CLUBS 671
critical period that was asserted by the Intervenor, and gener-
ally denied by the Petitioner and Employer, that raised substan-
tial and material factual issues best resolved on the basis of
record testimony presented at a hearing. Thereafter, a hearing
was conducted by me on January 4, 5, and 6, 2000, during
which the parties were afforded a full and complete opportunity
to be heard, to examine and cross-examine witnesses, to present
evidence pertinent to the issues,1 to make an opening argument,
and to file posthearing briefs. On the entire record of this case,
including my observations of the witnesses, I issue the follow-
ing report
Intervenor’s Objections
While the Intervenor filed three specific numbered objec-
tions, as well as a fourth unnumbered objection, its counsel
argues the Intervenor’s “objections” must be viewed as a seam-
less integrated continuity of events. The Intervenor argues that
when all of the pieces of the puzzle, including events occurring
both prepetition and postpetition, are put together the conspir-
acy hatched by the Employer to garner support for the Peti-
tioner and erode support for the Intervenor, will come into fo-
cus. I therefore have endeavored to set forth the facts relied on
by the Intervenor in chronological order as much as possible, so
that the contentions raised by Intervenor may be appropriately
analyzed. The Petitioner and the Employer, in addition to other
legal arguments discussed below, argue to the contrary that the
facts presented at hearing establish that the election atmosphere
was free from any impermissible conduct by any representa-
tives of the Petitioner or Employer or by any third parties.
The Resignation Plan
The record clearly establishes that a significant number of
the approximately 70 Major League umpires opposed the
choice of Richard G. Phillips, Esq., as counsel of the Major
League Umpires’ Association, MLUA or the Intervenor, as
early as February 1999. However, in a vote taken at the annual
meeting of the MLUA, Phillips was retained as counsel by a
vote of about 56 to 14. It further appears that the opposition to
Phillips was concentrated among umpires employed in the
American League as Mark Hirschbeck was the only National
League umpire to vote against Phillips in the open rollcall vote
taken at the February meeting. After the vote on the retention of
Phillips, the MLUA developed a strategy how to pressure on
Major League Baseball to negotiate a successor collective-
bargaining agreement before the collective-bargaining agree-
ment expired on December 31, 1999. It should be noted in this
regard that the expiration of the contract was to occur several
months after the completion of the 1999 baseball regular season
and post season that culminated in the World Series. The nego-
tiations for the contracts in 1991 and 1995 were difficult for the
MLUA to conclude. The 1991 contract was not reached until
opening day of the baseball season in April 1991. The contract
negotiations for the 1995 agreement were not completed until
May 1995, a month into the season and after a lock out by the
Employer on January 1, 1995.
On July 15, 1999, in an apparent effort to pressure the Em-
ployer to commence negotiations, the MLUA faxed the resigna-
tions of approximately 56 umpires to the presidents of the Na-
tional League and American League of Major League Baseball.

1 In the briefs filed here no argument was raised by the parties con-
cerning any of the rulings regarding admissibility of testimony of wit-
nesses made by me.
Without going into any of the specifics of the resignation plan
of the MLUA, facts, which, in my view, are irrelevant to any
issues encompassed by these objections, it appears that certain
umpires opposed the plan. It further appears that the Employer,
contrary to the MLUA, took the position that the resignations
were not protected concerted conduct under the National Labor
Relations Act. The Employer began to hire minor league um-
pires as replacements and the plan began to crumble as umpires
started rescinding their resignations. In late July 1999, the
MLUA rescinded the remaining resignations. However, it ap-
pears from the Complaint for Declaratory Judgment filed by the
MLUA on July 23, 1999, that the Employer accepted some
resignations but not others and 22 umpires lost their employ-
ment effective September 2, 1999.
Coble’s Conversations Concerning his Status
The resignations led to several conversations between um-
pires in late July 1999. Most notable were the conversations
between American League umpire and Crew Chief Drew Coble
and several of his colleagues and with league officials. Coble
had not worked as an umpire since the July 3, 1999 game in
Cleveland due to the worsening condition of his wife Kim, who
was suffering with cancer. Coble stayed with his family, caring
for wife until her death on September 5, 1999, and for their two
children. Coble testified that he never resigned his position or
authorized anyone to resign on his behalf, but he acknowledged
that he was a staunch supporter of Richie Phillips and the
MLUA, a fact he said was publicly known. Around July 20,
Coble received his first call from American League Supervisor
of Umpires Marty Springstead, who called him from a game in
Tampa, Florida. After inquiring into Kim Coble’s health,
Springstead asked Coble if he had heard about what was hap-
pening with the umpires. Coble responded that he was too busy
with his wife’s care to watch television or read newspapers and
he had not heard from the MLUA. Springstead reported that
the umpires had resigned en masse on July 14 and he was ad-
vising Coble that if he resigned he was going to lose his job.
Springstead said he was in the process of calling as many um-
pires in the American League as he could to get them to rescind
their resignations. Coble merely responded that he was a pro-
ponent of the Union and that Springstead knew where he stood.
The next call Coble received was from Joe Brinkman, a
friend of 26 years. Brinkman was known as an opponent of
Phillips for the previous 2 years, and would on September 10,
1999, become 1 of 14 organizers of the Petitioner, the Major
League Umpires Independent Organizing Committee. Brink-
man called Coble on July 24. He inquired about Coble’s wife
and told him that he was a friend and didn’t want to see Coble
get hurt. He said he had spoken to “higher ups” in baseball and
if Coble disavowed the MLUA and rescinded his resignation,
he would be “taken care of.” Brinkman said the resignation
recission had to be in the Commissioner’s office by July 25.
Brinkman dictated a letter for Coble to submit that would indi-
cate the resignation was rescinded as of July 14, and that Coble
agreed to work in either league. Coble asked Brinkman who
the “higher ups” were. Brinkman replied that he couldn’t say.
Coble stated, “Joe, I haven’t resigned, so I don’t need your
help.” Brinkman was not called as a witness although he was
present throughout the hearings. On examining Coble, Em-
ployer’s counsel called his attention to a declaration that was
signed by Coble on August 5, 1999, and submitted to the Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 672
gion in a previously filed unfair labor practice charge.2 This
declaration referred to Coble’s conversation with Brinkman
without mentioning that Brinkman suggested that Coble dis-
avow the MLUA. In reply, Coble explained that many of the
things he had told to the Union’s lawyer3 were not put forth
into the statement of August 5. He did not explicitly state
whether Brinkman’s encouragement that Coble disavow the
MLUA was among the omissions. Coble, on cross-
examination, also stated that he could not be 100-percent cer-
tain that the word “disavow” was used, but clearly stated that it
was his best recollection that “disavow” was the word used.
Coble also related a conversation with American League
umpire John Hirschbeck in late July 1999, on a date he did not
recall. Hirschbeck initially inquired into the condition of Ms.
Coble. Hirschbeck then said he was a close friend of Coble and
didn’t want to see him get hurt. He also said that if Coble
would disavow the MLUA and come over to the insurgents
[sic] he would be “taken care of.” Hirschbeck told Coble that
he had made several calls to the Commissioner of Baseball and
Coble wouldn’t lose his job. Hirschbeck said they had a deal in
process or in progress.
On cross-examination by Petitioner’s counsel, Coble recalled
there may have been other conversations that he had in July
1999 with Springstead and John Hirschbeck.4 Coble was also
cross-examined concerning a conversation he had received
from Derrick Irwin, an American League official, between July
15 and 26. In that conversation Irwin asked Coble what he
intended to do about his job. Coble replied he was considering
whether or not to resign.
John Hirschbeck, an organizer of Petitioner, was called as an
adverse witness by MLUA.5 He stated that he called Coble to
inquire about his wife’s condition. He also relayed to Coble
that he cared for him and his future. He states he advised Coble
to rescind his resignation. Hirschbeck stated that he never told
Coble that a deal has been worked out with baseball, or that he
had spoken with Bud Selig, the Commissioner or that Coble
would work if he disavowed the MLUA.
The record reflects that at some point in late July 22, the
Employer chose to accept 22 of the resignations effective Sep-
tember 2, 1999, notwithstanding the subsequent letters rescind-
ing them. The parties are still actively arbitrating whether these
22 were discharged or not and appear to have strongly held
contrary convictions regarding this issue. In this regard, Inter-
venor Attorney Patrick Campbell testified, “[T]he fact that
they’ve been displaced is not as a result of resignation; I sup-
pose it would mean that they were terminated, okay? But my
point is that they haven’t resigned. My point was back in July,
it was very clear in July that they had not resigned.”
Contract Claims Relative to the 22 Umpires in Dispute
One of the Intervenor’s numbered objections (Objection 3)
relates to its assertion that certain contractual benefits were
denied to the 22 umpires whose jobs were in dispute. It is con-
2 The unfair labor practice charge was later withdrawn. It appears an
uninvolved member of the public filed a parallel charge, which was
subsequently dismissed by the Regional Director. The appeal was
denied.
3 The law firm from Cohen, Weiss, and Simon.
4 A call Coble received from Phyllis Mehrige, vice president of the
American League, concerning his wife’s condition was also mentioned
on cross-examination.
5 The Petitioner stipulated that John Hirschbeck was its agent.
tended that such contractual breaches constitute violations of
Section 8(a)(5) of the Act and as such transmitted the message
to those in the unit that their continued support for the MLUA
would result in adverse treatment. The Intervenor also argues
that this conduct constitutes an expression of support for the
IOC and is a disparagement of the MLUA.
The 1995–1999 collective-bargaining agreement between the
Employer and Intervenor provided, among other things, for
special events bonus money to be paid in two ways. According
to the testimony of Campbell, all umpires who worked a special
event would be paid for it. This was termed the “working
money or working payment.” Five of the six umpires who
worked the 1999 All Star Game were later among the 22.
There is no dispute as to working pay for special events as
those umpires who worked the All Star game were in fact paid.
The second type of special events pay was termed the “pool
pay” by Campbell. This amounts to a payment of $20,000 to
all umpires whether they worked a special event or not. Camp-
bell explained that special events under article VII of the con-
tract include the annual All Star Game, the Division Series, the
League Championship Series and the World Series.6 However,
Robert Manfred, director of labor relations and human re-
sources and special counsel to the Commissioner’s Office, dis-
puted whether the All Star game constituted one of the special
events.7 The pool bonus payment is made annually on or be-
fore November 15. The record indicates that this $20,000
payment was not made to any of the 22 umpires in November
1999. The record does not indicate if the failure to pay the pool
money to the 22 was known to any of the other umpires.
The next issue alleged to be a unilateral change involves the
handling of the crew chief differential pay for those 5 umpires
among the 22 who had been crew chiefs.8 Campbell testified
that for the 1999 season, there were eight American League
crew chiefs and nine National League crew chiefs. A crew
chief has some additional responsibilities for and within his
four-person umpire crew. The crew remains constant through-
out the season, except for an occasional change due to vacation
leave or injury. The crew chief pay differential amounts to
$7500 per season, payable on June 1 and August 1 in two equal
installments. The five umpires whose disputed resignations
were accepted by the Employer effective on September 2 had
received both crew chief pay differential payments on time.
However, the final paycheck paid during the first week of Oc-
tober for each of these five former crew chiefs was reduced by
the amount of the pay differential, which represented the time
worked after September 3 through the end of the season. This
action of the Employer occurred without notice to the MLUA.
There is no record evidence that the crew chief pay recoupment
had been disseminated to any other umpires.
The final area where the Intervenor alleges a unilateral
change by the Employer concerning the 22 umpires whose
status was in dispute involves the Employer’s failure to pay
these individuals the severance pay provided for in the collec-
6 Umpires cannot work more than one special event, with the excep-
tion of the World Series umpires who may have worked an earlier
special event.
7 The caption of subsec. “A” of art. VII reads “Additional Compen-
sation, Division Series, League Championship and World Series.” The
paragraph then list the amount to be received by the umpire in the All
Star game as well as the other events named in the caption.
8 Frank Pulli, Terry Tata, Drew Coble, Richie Garcia, and Jim Evans
were the crew chiefs whose “resignations” were accepted.
NATIONAL LEAGUE OF PROFESSIONAL BASEBALL CLUBS 673
tive-bargaining agreement. Campbell described two circum-
stances in which the contract provides for payment to umpires
upon their separation from employment. Campbell testified
that under article VIII severance is paid to qualified umpires9
whether they are terminated by the Employer or whether they
terminate their employment voluntarily. Severance pay was
due to be paid between January 1 and 10, 2000. Campbell
testified10 that he had heard rumors that severance pay would
not be paid to the 22 in a conversation with a private attorney
representing one of the 22. The MLUA then filed a lawsuit, in
late July 1999 in Federal court seeking to compel compliance
with certain terms of the collective-bargaining agreement, in-
cluding the severance pay provision. The complaint asserted
that the MLUA had learned that the Employer would “withhold
the termination benefits” provided in the collective-bargaining
agreement from those umpires who had voluntarily terminated
their employment.11
A second legal action germane to the status of the 22 dis-
puted umpires was filed by the MLUA on August 30, 1999, and
was assigned to Federal District Court Judge Joyner of the
Eastern District of Pennsylvania, located in Philadelphia. This
action sought to compel arbitration to resolve the status of the
22 umpires who were not allowed to rescind their “resigna-
tions.” The parties in a settlement stipulation provided for,
inter alia, arbitration of the status of the 22 and payment of
wages and contractual benefits to the 22 through the end of the
1999 season although none of the 22 were to provide services
after September 2. The Employer specifically cited paragraph
5 of the settlement stipulation, which states:

[A]ny member of the umpiring staff of the Leagues as of Sep-
tember 3, 1999, who is entitled to receive, for the 1999 sea-
son, a payment pursuant to article VII.A.1 of the Basic
Agreement and the parties practice thereunder, may choose to
forgo such payment. The Leagues agree to aggregate the
payments which such members forego, and provide such sum
to the MLUA for distribution to the Umpires and those mem-
bers who chose to forgo their payment, based on seniority as
the Leagues and the MLUA shall agree.

Robert Manfred, executive vice president of labor relations and
human resources and labor counsel, employed by the office of
the Commissioner of Baseball, testified that he was involved in
the 2 days of negotiations leading to the settlement stipulation.
He testified that the Employer took the position that the pool
bonus payment for special events would be paid only to those
umpires employed as of September 3, thus disqualifying the 22
from receiving pool money. He testified that paragraph 5 was
the compromise reached on this issue and that umpires receiv-
ing the pool bonus pay could agree to forgo receipt of $20,000
and that money would go to the MLUA to be shared with the
22. Patrick Campbell, counsel for the MLUA, disputed the
meaning attributed to paragraph 5 by Manfred. Campbell
stated that those who opted to forgo payment could include the
22 or any other umpire. He further opined that if any specific

9 The contract provides for payment to umpires with 10 years of sen-
iority who voluntarily leave their positions.
10 On direct examination, Campbell refused to state with whom he
had such a conversation, and I therefore struck his testimony. On
cross-examination, he again referred to such a conversation but again
refused to give attribution.
11 It notes that the Employer contended the action by the umpires had
violated the no-strike provision of the collective-bargaining agreement.
“exclusions” were intended by the parties to the stipulation he
assumes such exclusion would have been expressly stated. The
parties were in agreement that paragraph 5 of the settlement
stipulation was never implemented or utilized.
Conversation Between West and Brinkman
The Intervenor contends that a conversation uncovered on
the Employer’s cross-examination which took place between
National League umpire Joe West and American League um-
pire Joe Brinkman in July after the resignations is pertinent to
its objections. West was asked on cross-examination whether
he had spoken with Brinkman. West acknowledged that
Brinkman urged him to rescind his resignation in order to keep
his job. West also acknowledged that Brinkman had said if the
MLUA got rid of Richie Phillips “they” could probably make a
new deal with baseball by Christmas. West’s response indi-
cated that this statement perplexed him because he states that
he then asked Brinkman how he could have a deal by Christmas
when we were still the bargaining agent. The cross-
examination and subsequent redirect never elicited any re-
sponse that may have been made by Brinkman or any further
details of the conversation. As noted previously, Brinkman was
not called to testify in this matter.
Poncino’s and Mark Hirschbeck’s Conversations
Larry Poncino worked as a National League umpire for 8
years prior to receiving notification that his resignation had
been accepted by the Employer to be effective on September 2.
Poncino testified that he has known umpire Mark Hirschbeck,
brother of American League umpire John Hirschbeck, for 16 or
so years. Poncino said he met him in the minor leagues. In the
last days of September, Poncino was in the back yard of his
home when he received a telephone call from Mark Hirsch-
beck. Mark Hirschbeck told Poncino that he was part of an
organization to form a new union to represent the umpires.
Poncino explained that he was totally against forming a new
association. He said if Hirschbeck and the others in this grass
roots group wanted to form a new association, all they had to
do was call a meeting of the MLUA and vote for a change in
leadership. Poncino stated that he felt there was no need to
decertify the Union whatsoever. Hirschbeck said they were
going full steam ahead and their position was to oust Richie
Phillips and form a new group. Hirschbeck offered his opinion
that the resignations were a “stupid” idea and it was time for a
change. Poncino praised “what they (the MLUA) did for 22
guys on September 2nd.” He added, “[C]an you imagine what
the fight would have been for all 58 of us or 66 of us if we had
stuck together?”
Mark Hirschbeck testified to this conversation as well.
Hirschbeck testified that he called Poncino because they were
friends and he was concerned about the resignation strategy of
the MLUA. Hirschbeck told Poncino that he was “basically fed
up” with Richie Phillips as the attorney. He said everything
Phillips did was negative and that Phillips had a reputation for
“pissing people off.” Hirschbeck said he didn’t want to go in
that direction any more. He felt that they could have gotten a
better lawyer “out of the phone book.” Poncino replied that he
was very happy with Phillips. Hirschbeck said he was with the
IOC and they were heading in a new direction. Poncino replied
that the Independent Organizing Committee was going to hurt
the 22 who were heading for arbitration. Hirschbeck disagreed
with that assessment claiming that they would have a better
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674
chance to help the 22 with a different approach than Phillips’
approach.
Poncino relates a second telephone conversation he had with
Mark Hirschbeck that took place a couple of days later. Pon-
cino said this call took place just prior to the MLUA’s October
4 general membership meeting. He noted that all of his conver-
sations with Hirschbeck were very civil. Hirschbeck stated in
this call that he wanted to make Poncino feel at ease. He said
that no matter what happened, Poncino was one of the guys
“they” want back. Poncino asked who had told this to Hirsch-
beck. Hirschbeck replied that he could not tell Poncino who
gave him that information. Hirschbeck added that with Richie
Phillips gone the deal that they had was the severance would be
increased to $500,000 or $550,000, and five-person umpire
crews would be installed. He also raised giving up some first-
class travel to achieve an increase in per diem. Hirschbeck told
Poncino that with Richie Phillips gone “within 72 hours we
could have this deal done.” Poncino replied that they already
had first-class travel and why would they want to give that back
and they should get per diem increases without any givebacks.
He noted that once the givebacks started “they would give it all
back.” Hirschbeck responded that for an hour he would sit in
the back of the bus and he wasn’t worried because they had
enough upgrades to fly first class anytime they wanted. When
Hirschbeck mentioned a deal could be done within 72 hours of
Phillips departure, Poncino asked how Hirschbeck could know
this. Hirschbeck replied, “Trust me Moose, on my wife and
kids.”
Hirschbeck presented a significantly different version of this
second conversation that he had with Poncino. In this conver-
sation, Hirschbeck recalls stating that they could do better in a
negotiation than Phillips because as he had said before, Phillips
had a tendency for “pissing people off.” Hirschbeck also said
their per diem and severance could go up. He said, regarding
airline travel, “we can downgrade and go into our per diem by
downgrading our tickets.” Hirschbeck stated that the conversa-
tion turned to a review of the major contract benefits that they
had. Hirschbeck also recalls telling Poncino that he felt that
Poncino and the younger guys among the 22 had a better
chance of getting their jobs back if the Employer went to the
five person crew opening more jobs because Poncino was a
good umpire. Hirschbeck specifically denied telling Poncino
that he knew of a deal to get Poncino back. He categorically
denied telling Poncino that he swore on his kids to prove it.
Hirschbeck explained that his wife had been collecting all arti-
cles regarding umpires from the Internet and that he had read
various articles that dealt with issues such as five-person crews
and per diem and travel.
Poncino reported this second conversation that he had with
Mark Hirschbeck concerning the crew size increase, severance,
and per diem increases and the deal could occur in the absence
of Richie Phillips on the floor of the Chicago meeting on Octo-
ber 4 in front of some 50 umpires, including 3 who were with
the IOC. Later Poncino also reported this conversation to
MLUA Counsel Campbell. After Poncino reported the contents
of the conversation with Mark Hirschbeck to MLUA Counsel
Patrick Campbell, Campbell suggested Poncino ask Hirschbeck
if he would testify to this possible deal at the arbitration hearing
of the 22. Thus, early on the morning of November 1, at about
8 a.m., Poncino called Hirschbeck from the golf course. Pon-
cino told Hirschbeck that the arbitration for the 22 was sched-
uled to begin in a matter of a few days. He asked if Hirschbeck
would be willing to testify at the arbitration concerning the
things he had said about a deal being done in 72 hours if Richie
Phillips was gone and it would include increased severance,
giving up first-class travel for per diem, and five-man crews.
Poncino testified that Hirschbeck said he would have to deny
that the conversation took place. Poncino asked why they were
going through with the decertification vote because they could
just vote Phillips out, but don’t decertify the Union. Poncino
added, “Why do you and John want to go through with this?”
Hirschbeck replied that the boat was at the dock and if Poncino
wanted to get on he should do so now as the boat was ready to
leave the dock.
Hirschbeck testified to the November 1 call he had received
from Poncino. He relates that Poncino referred to the things he
had mentioned about “per diem and air fares and all that” and
asked if he would testify in Philadelphia at the arbitration hear-
ing for the 22 guys. Hirschbeck asked, “What am I going to
testify about, Larry? It’s only my opinion.” Hirschbeck stated
that he hadn’t heard any of it from anybody. He said, “[I]t’s
just my opinion, so I have no reason to testify. I can’t testify
about myself.”
Poncino raised this once more on the November 7 confer-
ence call from the Tucson charity golf tournament for which he
was the honorary chairman. The call initiated by the IOC in-
volved some 50–60 individuals, mostly umpires, and was to
address Joe West’s argument about the “scratch bargaining”
issue that had arisen and which is discussed below. Poncino
again questioned Mark Hirschbeck about the contract claims
Poncino asserts Hirschbeck had made to him in the early Octo-
ber call. Poncino said that Hirschbeck had told him that he
would have to deny he said these things and would have to lie.
Hirschbeck asked Poncino if he was calling him a liar. Poncino
retorted that Hirschbeck had told him the truth when he said he
would lie. The version of this call was testified to by both
Hirschbecks and their testimony is generally consistent with
Poncino’s version.
IOC Files Petitions Seeking an Election
On October 12, 1999, counsel for the Major League Umpires
Independent Organizing Committee filed the instant petitions
(Cases 2–RC–22142 and 2–RD–1440), seeking an election in
the unit set forth above.
The record establishes that 14 individuals, including Joe
Brinkman, John Hirschbeck, Mark Hirschbeck, Tim Wilkie,
Jim Reynolds, Mike Everett, Jim Joyce, Tim McClellan, Larry
Young, and others, joined together to establish the IOC as a
labor organization. Only Joel Smith, a labor attorney from
Baltimore, Maryland, is paid by the IOC. Ron Shapiro, also an
attorney, has served as an unpaid advisor. Karen Brinkman,
wife of Organizer Joe Brinkman, has assisted the IOC by taking
notes and answering the phone for her husband although she is
not a professional secretary. The evidence establishes that the
IOC was voted into existence on September 10, 1999, and John
Hirschbeck testified that it began to function on September 12,
1999.
West Conversation with McKean
Joe West, a veteran of 22 seasons as a National League um-
pire, was described as a strong supporter of the MLUA and has
served on several committees, most recently heading the Pen-
sion and Health Benefits Committee. Around November 3,
NATIONAL LEAGUE OF PROFESSIONAL BASEBALL CLUBS 675
1999, West, Terry Tata, Jeff Kellogg, and Sam Holbrook12
attended a meeting called by the IOC in a hotel in downtown
Baltimore as representatives of the MLUA. West testified that
approximately 30 umpires and Attorneys Joel Smith, Larry
Gibson, and Ron Shapiro were present. West informed the
gathering of his role as MLUA rep and stated that his instruc-
tions were to talk about the upcoming arbitration for the 22 and
to try to mend fences because of the split in the group. West
testified that he spoke from the floor via the open microphone
for about 4 to 5 hours and asked questions and engaged the
group in discussion. The issue of a lockout was one of the
topics brought up by West because he believed that the Em-
ployer’s representatives at a meeting in Philadelphia had indi-
cated there would be a lockout. Attorney Shapiro and John
Hirschbeck both stated that if the umpires went with the IOC
they would negotiate; there would not be a lockout. West
viewed these comments in this way: “I mean that was their
speech, that was their rallying cry.”
Late in the day, in the hallway near the luncheon banquet
room, West had a conversation with fellow umpire Jim
McKean. McKean told West that if he voted for the IOC that
“we would not be locked out January 1.” West asked McKean
how he knew that. McKean replied, “[T]rust me.” West said,
“What do you mean trust you; somebody has to be telling you
this.” McKean replied, “Yeah, just trust me.” McKean was not
1 of the 14 organizers of the IOC and there was no evidence
that he had authority to speak as a representative of the IOC.
Further this conversation was a private one with West and there
were no representatives of the IOC who heard the statements he
made to West and ratified them. West called McKean a “big
proponent” of the IOC.13 West repeated this conversation to
Kaiser, MLUA President Jerry Crawford, Steve Holroyd, attor-
ney for the MLUA, and Pat Campbell, another attorney.
Kaiser conversations
An umpire of 23 years, Ken Kaiser testified in rapid fire to
several conversations pertinent to the Intervenor’s objections.
He was directed by counsel for the Intervenor to a conversation
with Jim McKean sometime in early December, after the bal-
lots were counted in the instant election. Kaiser has known
McKean for about 30 years. Kaiser expressed an opinion that
McKean was with the IOC from the “beginning.” Kaiser based
this opinion on the fact McKean voted to relieve Richie Phillips
of his position as counsel to the MLUA in early February 1999
and abstained in the July vote on the resignation plan. Kaiser
did not address the hearing officer’s question about conversa-
tions with McKean about his membership in and authority to
act on behalf of the IOC. He recalled McKean saying to him
once, at a time not identified on the record that “baseball will
not deal with Richie Phillips.” Kaiser stated that McKean told
him that he plays softball in Tampa, Florida, with Baseball
Executive Sandy Alderson’s father. There were no other de-
tails to this conversation. Kaiser then related a conversation
with McKean by cell phone from Philadelphia or Baltimore
with Joe West standing there. McKean told Kaiser that the IOC
had the smartest lawyers, Smith and Shapiro, and told Kaiser
“you’ve got to go our way.” McKean added, “Well, they’re not

12 Ken Kaiser was also scheduled to attend a s a representative of the
MLUA but his plane was cancelled due to a fog condition.
13 There is no evidence on the record to support the contention that
McKean was a “big proponent” of the IOC.
dealing; we’ve got the power now, you’re going to have to go
our way now.”
Kaiser also referred to a conversation with McKean in No-
vember in a hotel lobby as they got ready for the arbitration.
McKean said, “There’s this guy named Nelson, and I’ve never
met this guy, but I think he works for Sandy Alderson. As a
matter of fact, I think he’s like liaison between the umpires or
something.” Kaiser continued to relate his recollection of
McKean’s statement to him: “And he said, Nelson told me way
back, way back now, I can’t give you a date, way back that
there’s a deal in place ninety percent as soon as we oust Phil-
lips.”
Finally, Kaiser related a conversation he had at the urging of
umpire Dave Phillips with IOC Attorney Joel Smith. Kaiser
said he was very concerned about the 22 and asked Smith what
they were going to do about the 22. Smith informed Kaiser that
the 22 will not be the main issue for the IOC. They would first
get a contract and only when the contract was done would they
deal with the 22. Kaiser disagreed with that strategy and said
shouldn’t the 22 be the first priority. At that point the conversa-
tion ended with an apparent agreement to disagree.
Kaiser impressed me as a very sincere and honest individual
but he clearly had difficulty with this apparently novel experi-
ence of testifying at a hearing. He was able to relate what he
knew about McKean’s role with the IOC but when it came to
the various conversations he had he blurted them out in a rapid
fire fashion and rambled through a recitation of fragmented
details of portions of the conversations. The Intervenor’s coun-
sel was unable to direct him to specific events and he strayed
far from the questions he was asked. Thus, counsel was unable
to lay foundations for the various conversations that Kaiser
related. Kaiser testimony concerning the various conversations
he may have had therefore proved unreliable and not very pro-
bative.
The dismissal of four former umpires
The Intervenor finally urges that the postseason dismissal by
the Employer of four former umpires, three of whom were for-
merly officers of the MLUA on the eve of its October 4 general
meeting be considered. The Intervenor urges me to conclude
that these “discharges” are evidence of the Employer ridding
itself of “sympathizers” of the MLUA in order to further its
campaign to disparage the MLUA. However, there is no evi-
dence on the record that these four individuals remained sup-
porters of the MLUA after they commenced their employment
with the Employer. Neither is there any evidence as to any of
the reasons that led the Employer to dismiss these four indi-
viduals, or even if they were in fact dismissed. Thus, despite
the proximity of the “dismissals” of these four former officials,
to the October 4 MLUA meeting, there is no basis for me to
draw any conclusions concerning this circumstance even as-
suming that such discharges may be considered herein in the
absence of an unfair labor practice charge.
Analysis
The Intervenor urges me, and ultimately the Board, not to be
surprised by the paucity of conduct that occurred during the
critical period. Counsel notes that the Employer and Petitioner
were sophisticated and had received advice from exemplary
counsel. By acknowledging the startling lack of conduct during
the critical period commencing with the filing of the petitions,
Intervenor is asking that this election be overturned based pri-
marily (if not exclusively) on prepetition conduct. As set forth
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676
above, most of such conduct occurred in July 1999, more than 2
months before the Petitioner was established as a labor organi-
zation, and 3 months prior to the filing of the instant petitions.
The Petitioner and the Employer urge that the inquiry here be
limited to those events that occurred within the critical period.
Petitioner also argues that the notice of hearing issued by the
Regional Director refers solely to events within the critical
period and thus the scope of inquiry must be limited to that
time frame.
It must initially be determined what, if any, consideration I
am authorized to give to the July 1999 and the other pre-
petition events. Since Ideal Electric Co., 134 NLRB 1275
(1961), the Board has consistently held that the critical period
during which the parties conduct will be scrutinized for its im-
pact on employees who voted in an election commences with
the filing of the petition. Previously, the Board had considered
dates such as the date of election agreement or Board notice of
hearing, and later the date of the issuance of the Board’s Deci-
sion and Direction of Election, as the dates on which the critical
period would commence. The Board explained that these dates
had been set in order to shorten the period for scrutiny because
of the danger that would result from permitting consideration of
matters too remote to the election. In Ideal Electric, the Board
recognized that with delegation of authority in representational
cases to Regional Directors, the time between the filing of a
petition, and the conduct of the election had been greatly re-
duced. The Board, in setting the date of filing as the com-
mencement of the critical period, was satisfied that this date
would be the appropriate cut off point and would not permit
consideration of matters that were too remote to the election
during the postelection process. The Board, thereafter, has
routinely applied the Ideal Electric period as the time frame for
review of conduct asserted to be objectionable.
In very limited circumstances, however, the Board will con-
sider conduct that occurred prior to the filing of the petition. In
Dresser Industries, 242 NLRB 74 (1974), the Board was con-
fronted with a motion for reconsideration after the Ninth Circuit
had reversed several of the findings that it had been relied on in
ordering a new election. On reconsideration, the Board noted
that the record still supported findings of unlawful conduct by
the employer’s plant manager and several supervisors and it
again set the election aside. The Board held that the employer
had interrogated an employee, solicited complaints from em-
ployees, and threatened employees with a loss of benefits if the
union was elected. While all of this conduct occurred prior to
the filing of the petition, the Board specifically noted that the
employer, within the critical period, also engaged in an unlaw-
ful interrogation and promise of benefits to an employee previ-
ously threatened and that the prepetition conduct continued
within the critical period. Therefore, the Board held in Dresser
that the rule in Ideal Electric does not preclude consideration of
prepetition conduct where it “adds meaning and dimension to
related postpetition conduct.” The Board specifically noted
that, “[F]urther examination of Respondent’s prepetition con-
duct reveals that the critical period interrogation of and promise
of benefits to [an employee] by a supervisor was a continuation
of Respondent’s earlier attempts to thwart unionization.” Id. at
74.
While the Board will consider prepetition conduct that is di-
rectly related to postpetition conduct, it is also well established
that the Board will generally not set aside an election based
solely on conduct which occurred prior to the petition. See
Data Technology Corp., 281 NLRB 1005, 1007 (1986). How-
ever, there are limited exceptions to this premise as well. In
Gibson’s Discount Center, 214 NLRB 221, 222 (1974), the
Board held that where a union has made promises outside the
critical period to waive initiation fees as proscribed by the Su-
preme Court in NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973),
it will set aside the election. The Board noted the unique cir-
cumstances surrounding the Savair waiver, which necessarily
occurs prepetition and thus impacts the very filing of the peti-
tion. Thus the impact of this particular type of prepetition con-
duct lingers on throughout the election process. The Board
emphasized that its decision in Gibson’s Discount, 214 NLRB
at 222 fn. 3, was required by the unique circumstances of the
case and stated that it did not intend any broad departures from
Ideal Electric as a result of that decision. Similarly, the Board,
in Lyon’s Restaurants, 234 NLRB 178 (1978), set aside an
election based on a union representative’s prepetition statement
to employees that they had to join the union or they would not
work. There, the Board concluded that employees had a rea-
sonable belief that the union had the power to affect their em-
ployment. The Board stated that the facts of this case were very
similar those in Gibson’s Discount, supra, to warrant the same
exception to the stringent policy set forth in Ideal Electric.

Also in Royal Packaging Corp., 284 NLRB 317 (1987), the
Board set aside an election won in a close vote by a petitioner
where the union representative, who was married to a supervi-
sor of the employer with hiring authority, promised a voter that
if she and her daughter signed union authorization cards, the
daughter would be rehired from a 6-month layoff. The Board
held that in these circumstances, especially where the daughter
was reinstated on the day after she signed the authorization
card, employees could reasonably conclude that the union had
the authority to deliver on its promise of economic benefit. As
this promise, while not a waiver of union fees, was similarly a
promise of economic benefit in exchange for signing a union
authorization card, the Board considered this evidence grounds
to overturn the election although the conduct occurred outside
the critical period.
The Board has also held that unremedied, prepetition con-
duct which constituted unlawful assistance under Section
8(a)(2) of the Act for one of two competing unions was an ap-
propriate basis to set aside an election. See Weather Seal Inc.,
161 NLRB 1226, 1229 (1966).
Based on the applicable legal standards for dealing with ob-
jectionable conduct, it appears that if no objectionable conduct
occurred within the critical period or if the prepetition conduct
did not affect or give meaning to actions taken in the critical
period then the prepetition conduct presented here is irrelevant.
Only if the critical period objectionable conduct can be given
meaning and dimension by the previous conduct, can I consider
the prepetition conduct. The Board’s decision in Royal Pack-
aging, supra, does not provide a basis to consider the July 1999
conversations between Coble and Hirschbeck. The statements
made by Brinkman and John Hirschbeck, both later to become
organizers and agents of the IOC, regarding the consequences
of immediately rescinding resignations made to Coble14 are
unlike Savair waivers. The impact of the Savair waiver contin-
14 I am writing this section from the view that Coble’s version is
fully credited that he was told to disavow the MLUA and rescind the
resignation and in exchange a deal was in place with Commissioner
Selig to take care of his job.
NATIONAL LEAGUE OF PROFESSIONAL BASEBALL CLUBS 677
ues to affect the election into the critical period. The promise
made to Coble was not a promise of economic benefit in ex-
change for a signed authorization card. Moreover it was not
one that Coble would reasonably believe was within the power
of the IOC or its organizers to grant. Nor can they be attributed
to the IOC, which had not yet been organized as a labor organi-
zation.
As the Intervenor’s objections allege Employer’s conduct
only with regard to the failure to make certain contractual pay-
ments, I will turn to that aspect of the objections first. The
Employer is alleged to have failed and refused to pay certain
contractual benefits to the 22 disputed employees. This is con-
duct the Intervenor calls “unilateral changes.” It appears that
only the failure to pay the special events pool money actually
occurred within the critical period. While the Intervenor
couches its argument in this regard in terms reserved for unfair
labor practice proceedings, I note that the Board as a general
rule will not litigate unfair labor practices in representation
proceedings. I must therefore analyze only whether the Em-
ployer’s failure to make these contractual payments constituted
objectionable conduct by expressing the Employer’s support for
the IOC or by disparaging the MLUA.
The Employer at all times prior to the August lawsuit to
compel arbitration took the position that the pool money due on
November 15 was payable only to those umpires employed as
of September 3. While another employer may well have pro-
rated this benefit and not given it solely to those working at the
end of the season, the Employer’s position, while harsh, is cer-
tainly a matter for interpretation of the contractual language.
Eligibility for this benefit appears to turn, at least in the Em-
ployer’s view, on the status ultimately accorded to the 22 by the
arbitrator. The Employer also emphasizes that the settlement
stipulation entered into by the parties in resolving the lawsuit
contained a provision permitting those who receive the bonus to
forgo their share and redistribute it. While MLUA Counsel
Campbell disputed this interpretation of the settlement, it is
evident the parties had discussed this matter.
Another action of the Employer that the Intervenor catego-
rizes as a “unilateral change” involves the eligibility of the 22
for one or the other of the severance payments under the con-
tract. While this payment was not due until January 2000, well
after the election had been conducted, the MLUA took the posi-
tion that there was a clear repudiation of this obligation to pay
severance prior to the petition. The MLUA took the position
that the 22 were entitled to one of the severance payments (vol-
untary or involuntary separation) if the arbitrator either found
them to have resigned or been discharged. The Employer
points out that there was a third possibility: the arbitrator could
reinstate the 22 and they would not be eligible for severance
pay.15 This issue is replete with contractual interpretation is-
sues and facts dependent on the arbitrator’ decision.
The remaining “unilateral change” issue involves the crew
chief pay. The Employer had previously paid the entire amount
of the crew chief differential for the season to the 5 crew chiefs
among the disputed 22. A dispute arose when the October
paycheck16 for the five crew chiefs was reduced by the amount

15 The Employer points out in its brief that Campbell opined on the
witness stand that the Employer didn’t make the payment because it
didn’t want to be in a position to seek repayment in the event it lost the
arbitration.
16 The settlement stipulation provided, among other things, that the
22 umpires would be paid for the remainder of the 1999 season, al-
representing the September differential. As the arbitration pro-
ceeding is now underway and will determine the status of the
22, it is clear that, in the event the arbitrator holds that the 22
were improperly removed from their positions, the make-whole
remedy will provide for payment of the differential. On the
other hand, if the arbitrator rules that these individuals had
resigned, they may well not be entitled to the differential from
the date of their separation.
In a representation case, I am, of course, without authority to
recommend to the Board how it should deal with these contrac-
tual issues in an unfair labor practice context. However, it
seems unlikely that the Board would find an 8(a)(5) unilateral
change in these circumstances where an employer’s action was
consistent with a reasonable interpretation of the collective-
bargaining agreement.17 Nevertheless, regardless of how the
Board would view this conduct as an unfair labor practice, I
cannot agree with the Intervenor’s argument that objectionable
conduct occurred18 because the unfair labor practice matter is
not before me in this proceeding. Intervenor raises a second
argument regarding this conduct. It asserts in its brief “[t]hese
actions, coupled with the statements of Petitioner during the
campaign, convey an unassailable impression: a vote for Peti-
tioner will result in harmonious and beneficial bargaining,
while a vote for the MLUA would result in continued disparate
and harsher actions against umpires.” Contrary to Intervenor’s
contention, however, a review of the record before me as set
forth above, establishes no support for this argument. It has
been asserted that the Employer is blatantly anti-Phillips and
anti-MLUA, but the record is silent in this regard. I am unable
to conclude and recommend to the Board that the Employer’s
actions concerning certain contractual benefits amounted to
objectionable conduct based solely on speculation. Indeed, the
evidence supported the conclusion that the Employer’s conduct
was based on its reasonable interpretation of its obligations
under the collective-bargaining agreement. Moreover, the
MLUA was reasonably aware of the Employer’s position on
these matters and sought declaratory relief from the district
court in July and later sought to compel arbitration of the dis-
pute in August. The failure to pay benefits to the 22 flow di-
rectly from the disputed status of these 22 employees. Thus, I
conclude that the failure to pay the contractual benefits to the
22 employees is an essential element of the issue of whether
they remained employees after September 2. Moreover, the
failure to pay the benefits due to employees occurred when the
Employer accepted the resignations and this was outside of the
critical period. Accordingly, I recommend that the Intervenor’s
objection in this regard be overruled.19 The evidence fails to
establish that the Employer’s action was taken or had the effect
of influencing the election. Finally, it occurred outside the

though they would not work. The stipulation was silent on the crew
chief differential.
17 See NCR Corp., 271 NLRB 1212,1213 (1984), and the cases cited
there.
18 The Intervenor cites Accurate Die Casting Co., 292 NLRB 982
(1989), which involves only unfair labor practices and is not an objec-
tions case and Super Thrift Markets, 233 NLRB 409 (1977), which
involves consolidated unfair labor practice and objections cases.
19 The only other conduct attributed to the Employer by the objec-
tions is its dismissal of the four former MLUA officials from their jobs
with the National League office. As noted above, there was no evi-
dence submitted on this objection other than the timing of the dismiss-
als to a MLUA meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678
critical period and as such could not be considered objection-
able conduct.
Turning now to the conduct the Employer attributes to the
Petitioner that occurred during the critical period, the Interve-
nor relies on the November 3 conversation between Joe West
and Jim McKean at the IOC meeting in Baltimore. At the end
of the meeting umpire Jim McKean, who was called a supporter
of the IOC, spoke to West who had appeared at the meeting as
a delegate of the MLUA. McKean told West that if he voted
for the IOC they would not be locked out. West asked how
McKean knew this and McKean said, “[T]rust me.” West
pressed and said someone must have told him that. McKean
replied, “Yeah, just trust me.” The evidence submitted in sup-
port of McKean’s status as an agent was minimal. John
Hirschbeck testified without contradiction that McKean was not
1 of the 14 organizers of the IOC. Kaiser testified that McKean
had voted against Phillips at the February 1999 MLUA meet-
ing. However, he also said that McKean had abstained in the
ratification vote on the resignation plan in July. It is hard to
conclude anything about McKean from this evidence, except
possibly he wasn’t sure where he stood in July. The record is
silent about any activity of McKean in support of the IOC ei-
ther before or after the IOC was established. However, assum-
ing McKean was found to be an agent of the IOC, a fact not
established herein, the conversation he had with West is am-
biguous at best and is not a basis to overturn the election. To
put this comment in context, McKean had listened to West
represent the MLUA’s interests and articulate the MLUA’s
arguments throughout the 4 to 5 hours of the session. He had
most likely heard the discussion on the floor of the meeting that
West had related. West said Brinkman and Hirschbeck had
exclaimed what he termed the “rallying cry” of the IOC: they
would negotiate and not be locked out. Significantly, the lock-
out issue raised by West had been discussed on the floor by the
IOC leaders without any claims of any “assurances” from man-
agement that there would be no lockout. McKean spoke to
West in the hallway at the end of the meeting. McKean’s “trust
me” response can be viewed either as his expression of confi-
dence that the new approach advocated by the IOC would have
better results than the more aggressive approach of the MLUA
or it implies some inside information of a secret deal. Either
explanation is plausible. As such, this statement is rife with
ambiguity and is not sufficient to overturn the election.
The evidence in the record is insufficient for me to recom-
mend that any other conduct within the critical period forms the
basis for finding objectionable conduct. The testimony pro-
vided by Kaiser may relate to postpetition conduct by McKean.
However, as noted above, this testimony was not sufficiently
probative and should not be relied on. The final two conversa-
tions between Poncino and Mark Hirschbeck, an IOC organizer
and agent, took place within the critical period. There is a
credibility dispute between Poncino and Mark Hirschbeck as to
the three prepetition conversations in which Poncino testified
he was told by Hirschbeck of certain agreements already
reached on contract terms and that a deal was imminent if Phil-
lips was gone. Poncino asked Hirschbeck about this conversa-
tion within the critical period when he asked Hirschbeck to
testify about the conversation at the arbitration hearing on be-
half of the 22. The versions are dramatically different in that
Hirschbeck stated that he would not testify because the state-
ments he made were his own personal opinions and Poncino
stated that Hirschbeck said he would have to deny the
conversation. The matter was again raised in the IOC
sation. The matter was again raised in the IOC generated No-
vember 7 conference call to discuss the MLUA campaign issue
on the effect of decertification on negotiations and whether
bargaining would begin from scratch if the MLUA was voted
out. There were some 70 participants, mostly umpires, to this
call. At some point Poncino again asked if Mark Hirschbeck if
he would testify and Hirschbeck said he would have to deny the
conversations. Accusations were hurled and the conversation
was ended.
The Poncino and Hirschbeck conversations were the most
troubling, in my view. Poncino and Hirschbeck both appeared
to be reliable and credible witnesses. However, it appears that
Poncino fervently believed that Hirschbeck was telling him the
truth and that a secret deal was in the works. Poncino raised
this with the MLUA and many other umpires. However, as
noted above, I can consider the prepetition conduct only as it
bears on the conduct within the critical period. Hirschbeck told
Poncino and anyone else listening to the call that he would not
testify to Poncino’s recitation of their call. As such, Hirsch-
beck never repeated the claims he had made to Poncino and in
fact appeared to have pulled away from them. In this limited
situation, where the calls started in the prepetition period and
continued within the critical period that it is appropriate to view
the pre-petition conduct. While there is a credibility dispute
between the two individuals on the substance of the October 3
call, assuming Poncino’s recollection to be credited, it appears
that Hirschbeck at most was engaging in an exaggeration, or an
implied misrepresentation, of the strength of the IOC’s
bargaining power. Poncino was not convinced and argued the
merits of the issues raised by Hirschbeck, issues that had been
publicly written about and debated in the press. Hirschbeck’s
testimony that he said that Phillips was the problem because he
antagonized people has a ring of truth. The MLUA was badly
splintered starting in February and culminating in a July
bargaining strategy that failed to win strong support from the
members. After Poncino related his conversation with Mark
Hirschbeck to the MLUA, a memorandum from MLUA Presi-
dent Jerry Crawford was sent to the membership discussing the
risks in decertification and the loss of representation from the
MLUA. “Scratch bargaining” became the campaign issue with
assertions made that the IOC in effect would be in a weaker
position to start bargaining. Hirschbeck’s misrepresentation
was addressed and debated fully throughout the election cam-
paign even assuming that a misrepresentation of a material fact
had occurred. The Board has held that it will not set aside an
election based on such misrepresentations, absent evidence of
the use of forged documents. See Midland National Life Insur-
ance Co., 263 NLRB 127, 130 (1982). The Board concluded
that employees should be left the task of evaluating the cam-
paign propaganda by themselves. Certainly, here, the employ-
ees who were aware of Mark Hirscbeck’s statement to Poncino,
or Poncino’s interpretation of the statements made to him, had
the opportunity to seriously and fairly consider which labor
organization would likely have the greater bargaining strength.
Accordingly, I conclude that even if the conversations occurred
as Poncino recalls them, they would not constitute objection-
able conduct.
None of the other conversations20 set forth above relate in
any manner to conduct that occurred within the critical period.

20 The remaining conversations are the Coble conversations in July
and the West conversation with Brinkman relating to their resignations.
NATIONAL LEAGUE OF PROFESSIONAL BASEBALL CLUBS 679
To the extent that they may have involved some reference to
Phillips, they occurred in the context of the resignation strategy
and are unrelated to any critical period conduct. As there is no
other conduct alleged to have occurred within the critical pe-
riod, I recommend that Intervenor’s objections in this regard be
overruled.
Conclusions
It is recommended as follows:
Objection 1 relates to threats by the Employer to act in a
harsher manner toward the MLUA if they remain the employ-
ees bargaining representative, while promising harmonious and
beneficial bargaining if the Petitioner becomes the representa-
tive. As set forth above, the evidence fails to establish any
conduct on the part of the Employer that would be encom-
passed by this objection. I therefore recommend that this objec-
tion be overruled.
Objection 2 relates to assistance by the Employer to the Pe-
titioner, particularly by bargaining with the Petitioner over
terms and conditions of employment. Again, the evidence fails
to establish that the Employer bargained with the Petitioner or
in any other manner assisted them. I therefore recommend that
this objection be overruled.
Objection 3 relates the Employer’s failure to bargain with
the MLUA during the critical period. This objection appears to
relate21 to the failure to pay contractual benefits to the 22 dis-
puted employees. As discussed above, the failure to pay bene-
fits in the circumstances herein does not constitute objection-
able conduct and I recommend that this objection be overruled.
The Intervenor, in an unnumbered objection, contends that
the Petitioner engaged in objectionable conduct by advising
employees that it was already bargaining with the Employer
and described the terms of the already agreed-upon collective-
bargaining agreement. As discussed above, based on the evi-
dence of the Petitioner’s conduct within the critical period, I
recommend that this objection be overruled.
IT IS FURTHER RECOMMENDED that a certification of represen-
tation be issued.22

21 The MLUA requested bargaining with the Employer by letter of
its attorney dated October 27. Bargaining took place in November. It
does not appear that the Intervenor is alleging a refusal to meet and
bargain here.
22 Pursuant to the provisions of Sec. 102.69 of the Board’s Rules and
Regulations, exceptions to this report may be filed with the Board in
Washington, D.C., within 14 days of the issuance of this report. The
party filing exceptions must file eight copies thereof. Immediately
upon the filing of exceptions, the filing party shall serve a copy of its
exceptions on each of the other parties, and shall file a copy with the
Regional Director for Region 2.