Pony Express Courier Corp.

National Labor Relations Board - Board Decisions

Nov 25, 1986

282 N.L.R.B. 265 (N.L.R.B. 1986)

PONY EXPRESS COURIER CORP.
Pony Express Courier Corporation and Montana
Union of Guards. Case 19-RC-10477
25 November 1986
DECISION ON REVIEW AND
CERTIFICATION OF
REPRESENTATIVE
By CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
The National. Labor Relations Board, by a three-
member panel,' has considered objections to an
election held 23 June 19821 and the Regional Di-
rector 's report recommending disposition of them.
The election was conducted pursuant to a Decision
and Direction of Election issued on 13 May. The
tally of ballots shows nine for and six against the
Petitioner, with two challenged ballots, an insuffi-
cient number to affect the results.
The ]Board has reviewed the record in light of
the exceptions and brief, has adopted the Regional
Director's findings and recommendations, and finds
that a certification of representative should be
issued.
In fording that the threats of future physical
injury made by employees De Long, Eepers, and
Leavitt to their coworkers do not warrant setting
aside the election, the Regional Director relied on
Hickory Springs Mfg. Co., 239 NLRB 641 (1978). In
Home & Industrial Disposal Service, 266 NLRB 100
(1983), however, the Board overruled Hickory
Springs and expressly rejected as unrealistic the
rule that a union agent 's threats of bodily harm,
damage to personal property, or the like cannot, as
a matter of law, influence an election merely be-
cause the threat in question is couched in terms of
possible future conducl;. Notwithstanding this
change in Board law , we agree with the Regional
Director's finding that the threats in the instant
case do not warrant setting aside the election. We
note that De Long, Eepers, and Leavitt were not
agents of the Petitioner , that the objected-to threats
were not directed to soliciting or influencing em-
ployees to vote for the Union, and that the threats
were not made against a backdrop of an actual in-
cident of physical injury or damage to property or
followed by an act of violence . Further, the, inci-
dents in question all occurred in May , several
weeks before the 23 June election ,2 and were not
' All dates refer to 1982.
2 Contrary to the dissent , we find that Eepers' threat to Cupp is enti-
tled to little weight. Cupp's own testimony reveals that Eepers was
"pretty irate" over reports that Cupp informed the Employer of employ-
ee organizing activity and "got [Eepers] in a bunch of trouble." It was in
this context that Eepers remarked that if Cupp did it again , Eepers would
"beat the shit" out of him. The hearing officer stated that there is no evi-
dence of dissemination of Eepers ' remarks to other employees. In sum,
265
rejuvenated at the time of the election . Thus, view-
ing the threats separately as well as cumulatively,
we ford that they are insufficient to have created
an atmosphere of fear and reprisal which rendered
a free expression of choice of representative impos-
sible .3 Accordingly, we affirm, the Regional Direc-
tor's decision that the conduct does , not warrant
setting aside the election.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Montana Union of Guards
and that it is the exclusive collective-bargaining
representative of the employees in the following
unit:
All full time and regular part time courier
drivers employed by Pony Express Courier
Corporation in Helena, Missoula, Billings and
Great Falls, Montana, but excluding confiden-
tial employees and supervisors as defined in
the Act.
CHAIRMAN DOTSON, dissenting.
I find that the threats of bodily injury made by
union supporters De Long, Eepers, and Leavitt to
other unit employees were sufficiently egregious to
warrant setting aside the election . The majority
relies on the absence of any agency relationship be-
tween the Union and these three employees and
the lack of actual injury to person and property in
concluding that the conduct was not objectionable.
In so doing, they overlook several critical consid-
erations.
The Board recognizes that in certain circum-
stances third-party conduct can interfere With the
conduct of an election even absent a "backdrop of
actual violence." See RJR Archer, Inc., 274 NLRB
335 (1985).
In the instant case employee Pat De Long "blew
up" during a conversation with another employee
and the Employer's managers and officers and
vowed to "bust" or "break" the head of anyone
we find that Eepers' conduct, which was plamly directed at one employ-
ee rather than the entire bargaining unit, was too isolated to create a gen-
eral atmosphere rendering impossible the exercise of free choice in the
election held some 6 weeks later.
s RJR Archer, Inc, 274 NLRB 335 (1985), on which our dissenting
colleague relies, does not command a different result, for the threats in
that case were far more serious than those here . In Archer, a union sup-
porter, when told by an employee that he would vote against the union,
threatened to burn the employee 's home and van if he did not vote for
the union . Also, another union supporter told an employee to think
before he voted, that things can happen to vehicles or even to a wife and
kids. The employee also received threatening telephone calls, and the
threats were rejuvenated daily until the election by union supporters
asking the employee whether he had "made it through the night "
282 NLRB No. 36
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who crossed a picket line.1 Later the same day em-
ployee Eric Leavitt warned that he was "ready and
anxious 'to get his baseball bat out and get it
warmed up' in the -event of a strike. The" record
discloses that De Long's threat 'was-disseminated to
at least two other employees and Leavitt reported
his threat to three coworkers. The dissemination of
threats of physical harm was integral to the
Board's setting aside -the election in RJR Archer,
Inc., supra. It takes on even ' greater significance
where, as here, it occurs within a relatively small
unit of approximately 20 employees and where a
change in no more than 3 votes would alter the
outcome of the election.
1 According to testimony of two witnesses, the threat was to "kill"
anyone who crossed the picket line. The hearing officer did not resolve
the conflict.
In, addition to the foregoing, the majority ignores
the fact that Jeff Eepers' telling employee Mark
Cupp that he would "beat the shit out of [Cupp]"
if he spoke with the branch manager again caused
Cupp to terminate his employment. Cupp was sent
back to the Employer's premises by the unemploy-
ment office and returned to work only after being
urged by the Employer to do so.
Thus, in view of the number and severity of the
threats, their dissemination , and their established
tendency to coerce, I would find that the conduct
tended to quell employees' expression of free
choice and destroyed laboratory conditions neces-
sary for the conduct of a free and fair election.2
Accordingly, I would set aside the election and
direct that a second election be conducted.
2 See generally Steak House Meat Co., 206 NLRB 28 (1973).