Price Brothers Co.

National Labor Relations Board - Board Decisions

Jun 21, 1974

211 N.L.R.B. 822 (N.L.R.B. 1974)

822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Price Brothers Company and Provisional Mississippi
Laborers District Council, a/w Laborers Interna-
tional Union of North America , AFL-CIO, Peti-
tioner. Case 15-RC-5134
June 21, 1974
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 15 of the
National Labor Relations Board on May 16, 1973,
an election by secret ballot was conducted in the
above-entitled proceeding on June 15, 1973, under
his direction and supervision. Upon the conclusion
of the balloting, a tally of ballots was furnished the
parties which showed that, of approximately 75
eligible voters, 72 cast ballots, of which 37 were for,
and 35 against, the Petitioner. There were no
challenged ballots. Thereafter, the Employer filed
timely objections to conduct affecting the results of
the election.
In accordance with the Board's Rules and Regula-
tions, the Regional Director caused an investigation
to be made of the Employer's objections. On August
3, 1973, he issued a Notice of Hearing, directing that
a hearing be held before a Hearing Officer for the
purpose of taking evidence on issues raised by all of
the Employer's objections. On August 7, 1973, the
Regional Director issued an Order Transferring Case
to the Board, wherein the Hearing Officer was
directed to prepare and cause to be served on the
parties a report containing resolutions of the credibil-
ity of witnesses, findings of fact, and recommenda-
tions to the Board as to the disposition of the
Employer's objections. On October 25 and 26, 1973,
a hearing was held before Hearing Officer Dwain
Erwin at Hattiesburg, Mississippi. All of the parties
appeared and participated in the presentation of
evidence.
On March 11, 1974, the Hearing Officer issued and
served on the parties his Report and Recommenda-
tion on Objections to Conduct of Election, in which
he recommended that the Employer's objections be
overruled in their entirety. Thereafter, the Employer
filed timely exceptions to the Hearing Officer's
report and a supporting brief, and the Petitioner filed
a "Memorandum" in support of the Hearing Offi-
cer's recommendations.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
211 NLRB No. 119
The Board has considered the objections, the
Regional Director's report, the Employer's excep-
tions, and the parties' briefs, and hereby adopts the
Regional Director's findings, conclusions, and rec-
ommendations.
Three of the Employer's seven objections alleged
that employees were threatened with physical harm if
they did not join or support the Union. With respect
to these objections, the Hearing Officer found, on the
basis of evidence elicited at the hearing, that
employee Travis was told by employee McSwain,
who testified that he was told by a former employee,
Pettigrew, that, at a recent meeting of union officials
representing several of the cities in the area, those
present voted to kill Travis, but that the local union
president , Bivens, put a stop to it. Although the
Hearing Officer found that Travis took the threat
seriously and told his wife and another employee
about it, he found no evidence that the threat
actually originated with the Union. Instead he found
that the threat was likely fabricated by either
McSwain or Pettigrew. Without actually determining
who originated the threat, the Hearing Officer found
that, even assuming , as the Employer contends, that
Pettigrew originated the threat, there was no evidence
that Pettigrew had actual or apparent authority to
act as an agent for the Union. The Hearing Officer
further found that, because Travis told only one
other employee about the threat, it did not create a
general atmosphere of fear or coercion which would
require that the election be set aside.
The Employer excepts to these findings, essentially
contending that Pettigrew gave the appearance of
being a union agent, since he accompanied admitted
union officials on visits to employees' homes during
the organizational drive to solicit support for the
Union; that, in any event, the threat was taken
seriously by those hearing it, thereby creating an
atmosphere of fear and coercion; and that the Board
should scrutinize particularly closely the impact of
the threat here in view of the close vote. In support of
its position, the Employer cites, among other cases,
Steak House Meat Company, Inc., 206 NLRB No. 3.
We find no merit in the Employer's contentions.
The Hearing Officer found no evidence that the
threat was in any way attributable to the Union. The
Employer does not challenge that finding, but
instead contends that Pettigrew gave the appearance
of representing the Union. Even assuming, arguendo,
that employees might have a basis for believing that
Pettigrew, because of his friendship with certain
union officials, had inside knowledge as to what
actions the Union was contemplating, and assuming
further that Pettigrew was the one who initiated the
rumor of the threat to Travis' life, we would still not
PRICE BROTHERS CO.
find the threat here sufficient to set aside the
election.
Under long-established precedent, the standard to
be applied in determining whether an election will be
set aside on the basis of conduct not attributable to
one of the parties is whether the character of the
conduct was so aggravated as to create a general
atmosphere of fear and reprisal rendering a free
expression of choice of representatives impossible.'
We agree with the Hearing Officer that, inasmuch as
there was no evidence that the threat was widely
circulated, it is unlikely that it generated an atmos-
phere of fear and reprisal.
Clearly, the Steak House case is not authority to set
this election aside. Contrary to our dissenting
colleague, the record in this case does not reveal that
any threat was, in fact, made against the life of Roy
Travis. Further, the testimony reveals that there was
no motive for the Union to have made such a threat.
Travis was aware of this fact and testified as follows:
That's the reason I got so excited, because I
hadn't did nothing for nobody to kill me about. If
I had gone and did something, I could expect
that. That's why I went and bought me a gun,
because I don't know why nobody want to kill me
about, because I ain't did a thing at work but try
to make a living.
Perhaps Travis should have investigated McSwain's
warning more carefully before buying a gun. Travis
had not been involved in the campaign for or against
the Union. Why would the Union want to kill him?
He did ask himself the question, but instead of
probing for an answer, he was so upset that he
rushed out and bought a gun. McSwain told him that
he (McSwain) had been told by Pettigrew, who
presumably had been told by another person, that
the Union had threatened Travis' life. But Pettigrew
denied making any such statement to McSwain. And
Bivens, the Petitioner's president, did not know what
Travis' wife was talking about when she asked him
why the Union wanted to kill her husband.
On this state of the record, including hearsay
testimony twice removed, we are unwilling to find
that a threat had been made against Travis' life,
823
whether or not authorized by the Union. Of course,
another question would be presented if the finding
were warranted, as it is not, that such a threat had, in
fact, been made or even if an unfounded rumor of
this nature could reasonably be believed by the
threatened individual and other employees in the
unit. But we cannot agree with our dissenting
colleague that a bare, unauthorized, unsupported,
self-serving statement made by any employee to
another that the latter's life was in danger during a
union campaign should be sufficient to set an
otherwise valid election aside. Such a rule would
open the door to setting aside virtually every Board
election. We think this is an extreme position
unwarranted by the facts in this case and most
alarming in its application to Board election proce-
dures.
Accordingly, we adopt the Hearing Officer's
recommendation to overrule the above objection of
the Employer.
As the Petitioner has received a majority of the
valid ballots case, we shall certify it as the exclusive
bargaining representative of the employees in the
unit found appropriate.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Provisional Mississippi
Laborers District Council , a/w Laborers Internation-
al Union of North America , AFL-CIO, and that,
pursuant to Section 9(a) of the National Labor
Relations Act, as amended , the said labor organiza-
tion is the exclusive representative of all the
employees in the unit found appropriate herein for
purposes of collective bargaining in respect to rates
of pay, wages , hours of employment , and other
conditions of employment.
CHAIRMAN MILLER, dissenting:
I would not validate any election wherein a threat
has been made to the life of an employee in
connection with the election or the campaign,
regardless of who authorized or did not authorize the
threat. There was such a threat here.2 The election
should be set aside.
1 Central Pholoco/or Company, Incorporate4 195 NLRB 839, and cases
cited therein at fn. 2.
2 The majority 's efforts to gloss over the facts is, to me, unpersuasive.
The facts are that Travis, the threatened employee , refused to sign an
authorization card and expressed antiunion views to three employees.
Pettigrew, who initiated the story about the vote to kill Travis, was an active
campaigner for the Union . The story of the vote to kill is a threat, in my
view. It was certainly a threat so far as Travis was concerned , and I doubt
that he would have been comforted to know that persons knowledgable in
the law of evidence might later call it mere hearsay.