The Hertz Corporation

National Labor Relations Board - Administrative Judge Opinions

Dec 31, 2007

11-RC-006674 (N.L.R.B. Dec. 31, 2007)

JD(ATL)–42–07
Charlotte, NC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
THE HERTZ CORPORATION
Employer
and CASE 11-RC-6674
TEAMSTERS LOCAL 71, a/w
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
Petitioner
Jasper C. Brown, Jr., Esq., for the Regional Director.
Charles P. Roberts, III, Esq., for the Employer.
James F. Wallington, Esq., for the Petitioner.
ADMINISTRATIVE LAW JUDGE REPORT
AND
RECOMMENDATION ON OBJECTIONS
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
I. Preliminary Statement
In July 2007, Teamsters Local 71, a/w International Brotherhood of Teamsters (the
Petitioner or Union) filed a representation petition with Region 11 of the National Labor
Relations Board (the Board or NLRB), docketed as Case 11-RC-6674, seeking to represent
certain employees of The Hertz Corporation (the Employer).
On July 26, 2007, the Regional Director for Region 11 approved a Stipulated Election
Agreement directing an election to be held in the following unit of the Employer’s employees
(the Unit):
All full-time and regular part-time vehicle service attendants employed by the
Employer at its Charlotte Airport, North Carolina facility; but excluding all
other employees, counter sales representatives, courtesy bus drivers, instant
return representatives, mechanics, office clerical employees and guards,
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professional employees and supervisors as defined in the Act.
Pursuant to the Stipulation Election Agreement, a secret ballot election was conducted
on August 30, 2007. The results of the election, as disclosed by the Tally of Ballots served
upon the parties at the conclusion of the election, were as follows:
Approximate number of eligible voters: 30
Number of void ballots 0
Number of votes cast for the Petitioner 17
Number of votes cast against participating labor organization 12
Number of valid votes counted 29
Number of challenged ballots 0
Number of valid votes counted plus challenged ballots 29
The challenges were not sufficient in number to affect the results of the election.
On September 6, 2007, the Employer filed timely objections to conduct affecting the
results of the election. On September 25, 2007, the Regional Director for Region 11 of the
Board issued an Order Directing Hearing and Notice of Hearing, finding that the Employer’s
objections raise substantial and material factual issues, including, but not limited to, issues of
credibility which may best be resolved by hearing before an Administrative Law Judge. The
Regional Director’s Order directed that a hearing be held on the Employer’s Objections and
that the designated Administrative Law Judge prepare and cause to be served upon the parties
a report resolving questions of credibility, and containing findings of fact and
recommendations to the Board as to the disposition of the issues. A hearing was held and
conducted on November 5, 2007, consistent with the Regional Director’s September 25, 2007
Order.
All parties were represented at the hearing and were afforded full and complete
opportunity to be heard, to examine and cross-examine witnesses, and to present evidence
pertinent to the issues.
In accordance with the Regional Director’s Order, and based upon the record as a
whole, and after considering the arguments by the parties, I make the following findings of
fact and credibility resolutions1 and issue this report with recommendations to the Board.
II. The Objections
A. Text of the Employer’s Objections
The text of the Employer’s Objections is as follows:

1 In making credibility determinations, I have considered the weight of the respective evidence, the
demeanor of the witnesses, inherent probabilities, and reasonable inferences drawn from the total record
evidence.
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Objection 1.
During the critical period, including while the election was in progress, Union
officers, agents, and supporters engaged in numerous acts that were
threatening, intimidating, abusive, physically assaulting, and otherwise
coercive. These acts occurred in the presence of voting unit employees or
otherwise were disseminated to voting unit employees, thereby interfering with
and precluding a free and fair election.
Objection 2.
During the critical period, including while the election was in progress, Union
officers, agents, and supporters formed a gauntlet through which employees
were required to walk as they approached the voting area. These acts occurred
in the presence of voting unit employees or otherwise were disseminated to
voting unit employees, thereby interfering with and precluding a free and fair
election.
The Employer’s objections initially included a third conclusionary objection. The Employer
withdrew this objection at hearing.
B. Background and Undisputed Facts
The Employer operates a car rental facility at the Charlotte Douglas International
Airport in Charlotte, North Carolina. The Union, seeking to represent the vehicle service
attendants (VSA’s), has also been the certified collective bargaining representative for the
Employer’s counter sales representatives (CSR’s) and the Employer’s courtesy bus drivers at
the Charlotte facility since March 16, 2006. On October 31, 2006, the Employer and the
Union signed a collective bargaining agreement covering the CSR’s and the courtesy bus
drivers. The agreement remains in effect until May 4, 2009.
At the time of the August 30, 2007 election, John Kreitner was employed by the
Employer as the Human Resources Manager for the Southeast Region. Stacy Snyder served
as the Employer’s Area Human Resources Manager.
The August 30, 2007 election was conducted in two voting sessions. The first voting
session ran from 10:00 a.m. to 12:30 p.m. and the second session ran from 3:00 p.m. to 5:30
p.m. Employee Sylvester Challenger served as the Employer’s observer for the morning
election session and Al Little was the Employer’s observer for the afternoon election session.
There was no Union observer for either election session.
During the course of the hearing, the Employer introduced into evidence a diagram of
the Employer’s Charlotte, North Carolina facility. The diagram shows the Employer’s main
customer service building containing the lobby area and the public entrance from the courtesy
buses. The diagram also depicts the break room in the main building that was used as the
designated voting area. The break room is located off a hall that runs the width of the
building with exit doors at both ends of the hall. There is another hallway that runs
perpendicular to the long hall and connects the long hall to the lobby area.
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Throughout the course of the hearing, no witness was able to testify with certainty as
to the geographic directions of the diagram. Consequently, there is no record evidence as to
what constitutes north, south, east, or west on the diagram as related to witness testimony.
For the benefit of the reader of this report, the diagram is viewed as looking at the front of the
Employer’s main building. Thus, the area that is described as the Gold Booth area is located
to the left of the main building. The area that is described as the vehicle service area is
located to the right of the main building. Stacy Snyder testified that the break room is
approximately 32 feet from the outside door exiting the building toward the Gold Booth area.
The entrance to the break room is also approximately 26½ feet from the door exiting the
building toward the vehicle service area where the VSA’s clean and fuel the vehicles. The
distance between the vehicle service area and the building is approximately 72 feet.
C. Employer Objection One
During the critical period, including while the election was in progress, Union officers,
agents, and supporters engaged in numerous acts that were threatening, intimidating,
abusive, physically assaulting, and otherwise coercive. These acts occurred in the
presence of voting unit employees or otherwise were disseminated to voting unit
employees, thereby interfering with and precluding a free and fair election.
1. Facts
a. The Incident Involving Susino and Russell
(1) The Employer’s Evidence
William Susino is the Employer’s Area Revenue Manager. As of August 30, 2007,
Susino had only been assigned to the Employer’s Charlotte, North Carolina facility for
approximately one month. On the day of the election, Susino was instructed to greet Union
President Ted Russell and escort him to the break room where the election was to be held. He
testified that he was given no other instructions about policing the area. Normally, Susino did
not have any responsibility or involvement in labor relations matters.
Susino had not previously met Russell and he had been given only a brief description
of his appearance. Susino waited for Russell at the entrance gate as he had been told that
Russell would park next to security. As he waited, he observed a man drive through the
incident return area and then around the VSA area and the back of the building. The man
ultimately parked by the Gold Booth Area. Susino walked around the back side of the
building and approached the man. He recalled that he asked the man if he could help him and
the man replied that he could not. Susino recalled that when he pointed out to the man that he
parked in an Employer parking area, the man then introduced himself as Russell. Susino
explained that he too introduced himself and explained that he was to escort Russell to the
pre-election conference. Susino asserted that Russell simply walked away from him. Even
though Susino again told Russell that he needed to take him to the meeting, Russell began
talking with CSR Penny Wallace outside the entrance to the facility. When Russell finished
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his conversation with Wallace, Susino told Russell that he was late for the pre-election
conference and Susino attempted to direct Russell toward the outside door leading to the long
hallway and toward the area of the pre-election conference. Susino recalled the time as 9:40
a.m. and the pre-election conference was to have begun at 9:30 a.m.
Rather than going to the outside door that would lead to the long hallway and toward
the break room, Russell walked toward the door leading to the lobby or main customer check
in area. Susino testified that when Russell grabbed the door handle, he asked Susino if there
were any “Union representatives” inside the building. Susino replied: “Probably, yes.”
Russell responded: “Then don’t get in my fucking way then.” As Russell opened the door, he
hit Susino with the door. Susino explained that he was standing with his left side next to the
door. Russell grabbed the door with his right hand and pulled the door open. Susino testified
that he did so with such force that the door hit him in the left side, hitting both his shoulder
and his leg. Susino also recalled that the door was actually pulled over his left foot and he
was knocked backward in the process. Susino explained that he did not move out of the way
of the door because he did not expect the door to open so quickly. He also explained that he
had been in front of the door because he was trying to direct Russell to the door leading to the
break room. Susino recalled that Russell walked into the lobby area and spoke with CSR
Monica Moore who was working behind the counter. Russell then walked through the
customer service area, passed the employee clock-in area, and then finally down the side hall
that also lead to the break room.
Susino testified that later in the morning a “couple of people” noticed that he was
favoring his left side and asked him if he were all right. He recalled that at approximately
11:00 a.m., CSR Monica Moore asked him about his shoulder and he mentioned that he had
been hit by the door. When she asked who had hit him, he told her Russell. At that time,
Wallace was walking near to them and interjected: “Yeah, I saw that and Naomi saw that as
well.” Susino did not testify as to the identity of “Naomi.”
Susino also recalled that shortly after noon, he had a conversation with VSA Al Little
in which he told Little what happened to his shoulder. Little confirmed this same
conversation. After speaking with Susino, Little went to Snyder’s office to check with her
again about his duties as an observer for the afternoon election. While in Snyder’s office
Little spoke with his supervisor, Albert Massey. During the conversation with Massey, Little
again heard about the incident involving Susino and Russell.
(2) The Petitioner’s Evidence
Russell testified that during the two days prior to the election, he held a shop steward
election involving another employer. He described himself as “pretty well blistered out” and
“dragging” on the day of the election because of the lack of sleep. Russell explained that
upon arriving at the facility on August 30, he saw Susino. At the time, he did not know who
he was and didn’t really look at him. Arriving at approximately 9:20 to 9:25 a.m., he believed
that he had enough time to go into the front lobby and to speak with some of the CSRs that he
represented. Russell explained that it is his custom to speak with his members when he is at
the facility.
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As Russell started toward the lobby door, he heard someone shouting to him. The
man who he later learned to be Susino asked him if he could help him. Russell simply told
him “No.” Although he was wearing his union shirt, the man asked his name. After Russell
identified himself, Susino told him that he had to go into the building at a different door.
Russell remembered telling Susino that he did not have to go in the door that Susino directed.
He told Susino that he had some people with whom he wanted to speak. He told Susino that
he knew where the meeting was being held and that he would go around to the meeting.
Russell testified that Susino insisted that he use the other door to the building.
Russell acknowledged that he used profanity and recalled that he asked Susino: “Who
the ‘f’ are you?” After Susino identified himself as “Bill,” Russell continued down the
sidewalk; telling Susino that he was going in the door leading to the lobby. Despite Susino’s
protests, Russell walked passed him and continued toward the lobby door. Russell asserted
that when he reached the lobby door, Susino walked in front of him and stood before the door.
Russell testified that he reached for the door with his left hand and pulled it approximately 10
inches open. He recalled that Susino shoved back against the door, causing Russell to lose his
grip on the door handle. Russell explained that he again reached for the door more forcefully
and when he opened it, he moved both the door and Susino. Russell acknowledged that when
he did so, he was angry. He testified: “I’m not used to being challenged like that. I’ve got a
right under Article 6 of the collective bargaining agreement to come on that property and
speak to my members at any time.” Russell walked into the customer service area and spoke
with two of the CSRs who were on duty. No VSAs were in the lobby at the time that he
entered. From the lobby area, he proceeded through the smaller hallway leading to the long
hallway and ultimately to the break room.
Prior to the hearing, the Petitioner subpoenaed the video tapes of the Employer’s
surveillance cameras in the vicinity of the voting area. The tape that recorded the lobby of the
customer service area depicted Russell walking through the lobby at 14 seconds after 9:43
a.m. Susino was walking approximately five to six feet behind him. The parties viewed the
tape and the Employer’s manager, Gregory Wilson, testified that both Russell and Susino
appeared to be walking at a normal pace. They were both walking through the lobby from the
left side of the building to the right side of the building.
b. The Incident Involving Russell and Kreitner
(1) Employer’s Evidence
Kreitner testified that as Human Resources Manager for the Employer’s Southeast
Region, he had known Russell prior to the day of the election. Kreitner had worked with
Russell during the contract negotiations for the CSRs and the courtesy bus drivers during the
previous year. Prior to the August 30, 2007 election, Kreitner had also spoken with Russell
about who would be designated as a Union observer for the election. When Russell told
Kreitner that he wanted to use a shop steward for the CSR bargaining unit, Kreitner objected.
Kreitner told Russell that he could not use the shop steward because the individual would be a
union official.
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Kreitner recalled that he went to the pre-election conference around 9:30 a.m. When
Russell arrived for the conference between 9:30 and 9:45, the only individuals present were
Kreitner, Employer observer Sylvester Challenger, Stacy Snyder, and the NLRB agent.
Kreitner was standing in the break room door leaning on the door frame with his back to the
entrance. As Russell entered the room, Kreitner felt a “hit” in his lower back. When he
turned around, he saw Russell and spoke to him. Susino confirmed that Russell hit Kreitner
in the lower back with an open hand. He recalled that Kreitner stumbled forward and
appeared stunned as he turned around to see Russell. Kreitner recalled that Russell
responded: “If you have somebody tail me again you son-of-a-bitch, I’m going to slap a
charge on your ass.” Snyder testified that she overheard Russell telling Kreitner: “Don’t you
ever have anyone tail me again and tell me where to park you son-of-a-bitch, or I’ll slap
charges on your ass.” Sylvester Challenger testified that after Kreitner spoke to Russell,
Russell responded: “Whenever I am on this lot, nobody tells me where to park.” Both
Kreitner and Snyder recalled that the Board Agent interjected and cautioned Russell about his
language. Challenger recalled that the Board Agent told Russell to calm down. Kreitner then
again greeted Russell.
(2) The Petitioner’s Evidence
Russell concurred that he had worked with Kreitner during the contract negotiations
for the CSRs and courtesy bus drivers in 2006. Prior to the election concerning the VSAs,
Russell told Kreitner that he wanted to use CSRs Harper and Wallace as his election
observers. Kreitner had objected on the basis that they were both union stewards covered by a
collective bargaining agreement. In a telephone conversation prior to the election, Board
Agent Sandra Grier also told Russell that he could not use the stewards as observers if the
Employer objected. Russell chose to use no observers.
Russell does not deny that when he entered the break room prior to the pre-election
conference, he hit Kreitner who was standing in the doorway. He recalled that he used the
back of his hand and that Kreitner moved forward. Russell denied that his touching of
Kreitner was either a slap or a shove. He described it as a flip of his hand on Kreitner’s back.
While he asserted that he would have done the same thing to anyone else blocking the
doorway, he acknowledged that he was “irked” because of his interaction with Susino. He
recalled that as Kreitner turned around to face him, he was smiling.
Russell admitted that once Kreitner turned around, he (Russell) “unloaded on him.”
Russell recalled telling Kreitner: “Don’t you ever have another SOB challenge me when I
come on this property, or get in my face and tell me I can’t do something. I’ve got a right
under this bargaining agreement to be here. If you do, I will file a labor charge so far up your
ass that you’ll be sneezing it.” Russell recalled that after the Board Agent told him to calm
down, the incident was over and the pre-election conference began.
c. Discussion
The Employer asserts that Russell’s conduct on the morning of the election constitutes
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not only objectionable conduct, but also conduct that is violative of Section 8(b)(1)(a) of the
Act. Citing Sea Breeze Health Care Center, Inc.,2 331 NLRB 1131, 1133 (2000), the
Employer maintains that it is the Board’s policy to direct a new election in cases where unfair
labor practices have occurred during the critical pre-election period, unless the conduct is so
de minimis as to warrant a finding that it did not impact on the election results. In its post-
hearing brief, the Employer cites the Board’s decisions in District 20, United Mine Workers of
America,3 192 NLRB 565, 566 (1971) and Teamsters Local 115 (Oakwood Chair),4 277
NLRB 694 (1985) where restraint and coercion directed against supervisors and managerial
personnel were found to violate Section 8(b)(1)(a) of the Act inasmuch as the conduct became
or was sure to become known to employees in the course of a strike.
The Employer also asserts that the Board’s decision in Allou Distributors, Inc., 201
NLRB 47 (1973) supports a finding that a union’s assault of a supervisor is violative of
8(b)(1)(a). In Allou, the employer prepared, circulated, and caused a certification petition to
be filed in violation of 8(a)(1) and then withdrew recognition in violation of 8(a)(5). The
Board also found that the union violated Section 8(b)(1)(a) of the Act by its coercion and
threats to employees during the campaign period. During the course of the campaign, two
union business agents assaulted a management official outside the presence of employees.
Although the administrative law judge did not find the conduct violative of the Act, the Board
noted that the management official told employees about the assault and showed them the red
marks on his face. The Board opined that inasmuch as the assault took place in
circumstances wherein employees would be reasonably expected to become aware of the
incident, such conduct violated Section 8(b)(1)(a) of the Act. The Board went on to explain
that in light of the coercive conduct by both parties, a new election was appropriate. It is
apparent therefore, that the facts of the Allou case are distinguishable from those of the instant
case. In Allou, the union representatives’ assault of the supervisor occurred in the midst of a
bitter and heated election campaign in which the union threatened employees with economic
injury and physical harm. It is reasonable that employees would be additionally threatened if
they learned of the assault on a supervisor. Thus, unlike the circumstances of the instant case,
such conduct would reasonably constitute a violation of Section 8(b)(1)(a).
The Employer also offers the Board’s decision in Hickory Springs Manufacturing Co.,
239 NLRB 641, 642 and 644 fn. 21 (1978) in support of its argument that conduct in violation
of Section 8(b)(1)(a) is conduct that interferes with the exercise of a free and untrammeled
election choice. Although the Board affirmed that a violation of the Act during the critical
period constitutes grounds for setting aside an election in its decision in Hickory Springs, the
Board did not find the union’s conduct to constitute 8(b)(1)(a) or to be grounds for setting

2 The Board found that the employer not only unlawfully interrogated and threatened employees, but also
attempted to unlawfully poll its employees’ union sentiments. The Board opined that in doing so, the
employer not only engaged in unfair labor practices, but also sufficiently interfered with the election to
require a new election.
3 The circumstances of this case involved threats to harm a foreman’s wife and children in the presence
of pickets.
4 The union was found to have violated Section 8(b)(1)(a) of the Act after agents of the union beat the
employer’s president, requiring 15 stitches in his scalp and 5 stitches on his face.
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aside the election. The Board, in fact, went on to distinguish how the union’s conduct may
have had the opposite effect on voting employees. In Hickory Springs, the employer filed
objections based upon statements made or adopted by union officials related to what actions
the union would take in the event of a strike. While the statements threatened violence to
individuals crossing the picket line, the statements did not involve any threats or hints of
threats related to events concerning the election and were not calculated to coerce employees
to vote for the union. The Board found that under these circumstances, it is “improbable that
this type of verbal threat would have a coercive effect on the employees as to cause them to
vote for the union.” The Board explained that in order for conduct to warrant setting aside an
election, the conduct must not only be coercive, but must be so related to the election as to
have had a probable effect on the employees’ action at the polls. Specifically, the Board
noted that the employees had it within their power to blunt the threats entirely by voting in the
secret ballot election against the union. The Board’s majority opined that if there was an
immediate effect of the union’s conduct, it would be to cause employees to be repelled by the
conduct and cause them to vote against the union.5
In evaluating party conduct during the critical period, the Board applies an objective
standard. Thus, conduct is found to be objectionable if it has “a tendency to interfere with the
employees’ freedom of choice.” Cambridge Tool & Manufacturing Co., 316 NLRB 716, 716
(1995). The Board considers such factors as:
(1) the number of incidents of misconduct; (2) the severity of the incidents and
whether they were likely to cause fear among employees in the bargaining unit; (3) the
number of employees in the bargaining unit subjected to the misconduct; (4) the
proximity of the misconduct to the election date; (5) the degree of persistence of the
misconduct in the minds of the bargaining unit employees; (6) the extent of
dissemination of the misconduct among bargaining unit employees; (7) the effect, if
any, of misconduct by the opposing party to cancel out the effects of the original
misconduct; (8) the closeness of the final vote; and (9) the degree to which the
misconduct can be attributed to the party.6
With respect to this objection, the Employer relies upon two incidents involving the
Union’s President within the 30-minute period prior to the election. The Employer further
asserts the significance of the Union’s margin of victory of only 5 votes in a bargaining unit
of 30 employees. Certainly, all of these factors, including the closeness of the vote and the
occurrence of the incidents on the day of the election, must be considered. Although the
relative margin in the election results is a factor to be considered, the overall record does not
support a finding that the alleged conduct was likely to cause fear among bargaining unit
employees or was even of such import to be considered by employees.
Russell does not deny that he was angry when Susino stood in front of the lobby door

5 As the Employer points out in its brief, the case was overruled on other grounds in Home & Industrial
Disposal Service, 266 NLRB 100, 101 (1983), when the union made threats to employees within an
hour of the election.
6 Cedars-Sinai Medical Center, 342 NLRB 596, 597 (2004).
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and he acknowledges that when he jerked open the door, he moved Susino along with the
door. Susino does not deny that when Russell opened the door, he was standing on the left
hand side of the door and did not move. He explained that he had not expected the door to
open as fast as it did. Based upon the testimony of both Susino and Russell, it appears that
Russell used profanity and that Susino was struck by the door as Russell opened the door with
some degree of force. There was, however, no evidence that anyone overheard their
conversation at the door. Additionally, there is no evidence that the incident was witnessed
by any bargaining unit employee. The only indication that the incident was observed by
anyone was included in Susino’s hearsay testimony. He testified that at approximately 11:00
a.m. on August 30, CSR Monica Moore asked about his shoulder and noticed that he was
favoring it. When he told her that he had been hit by the door, she asked by whom. He
recalled that as he responded that it was Russell, CSR Penny Wallace walked by him. He
asserted that Wallace interjected: “Yea, I saw that and Naomi saw that as well.” While
Wallace did not testify or dispute this out-of-court statement, there was no record evidence to
confirm the identity of “Naomi” or to confirm that the employee referenced by Wallace is a
member of the bargaining unit. I also find it interesting that Moore asked Susino about what
happened to his shoulder. There is no dispute that Moore was working in the lobby area when
Russell entered and she was the first person with whom he spoke. The fact that she was in the
same room as the door and was unaware of the incident certainly belies the significance or
severity of the incident.
Only two bargaining unit employees testified that they were aware of any incident
involving Susino and Russell prior to their voting on August 30, 2007. Employer observer Al
Little recalled that Susino told him about the incident during the break between the first and
second voting period. The only other individual who mentioned the incident to him was his
supervisor. As the Employer’s observer for the afternoon voting period, Little remained in
the polling area for the entire election period. He did not discuss the incident with any other
employees. Although VSA Sam Whitley testified that a few employees told him that Russell
had raised “some sand,” on the day of the election, he could not recall with whom he had
spoken. Additionally, while he described Russell’s conduct as “raising some sand,” he did
not explain what he meant by “raising sand” and he did not confirm that any employee told
him about either incident involving Susino or Kreitner. The earliest that VSA Robert English
learned of any incident involving a Union representative was the evening after he voted.
While CSR Sara Weaver testified that on the day of the election, she had heard that there was
some conflict between Russell and one of the managers, she could not recall from whom she
had heard this. Thus, there was no evidence that she had heard about this “conflict” from any
bargaining unit employee or that she had been told about Russell’s using force or profanity
with either Kreitner or Susino. More importantly, there was no evidence that she
communicated this information to any bargaining unit employee prior to their voting.
Employer observer Sylvester Challenger is the only bargaining unit employee who
was present during the incident involving Russell and Kreitner. He recalled that at the time
that Russell entered the room, he was standing on the other side of Snyder and was looking
toward the ballot box. He only recalled that when Russell came in, Russell told Kreitner:
“Whenever I come on this lot nobody tells me where to park.” He recalled that the remark
upset him because he assumed that one of his co-workers had mistakenly told him where to
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park. He did not testify that he observed Russell’s hitting Kreitner or even touching Kreitner.
There was no evidence that Challenger told any other bargaining unit employees about
Russell’s comments or actions when he entered the voting area.
The Board has long held that an objecting party must show that the conduct in
question affected employees in the voting unit and the test for determining whether there has
been objectionable conduct is an “objective standard.” Avante at Boca Raton, Inc., 323
NLRB 555, 560 (1997). Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995). Thus, there
must be evidence that bargaining unit employees were aware of the alleged coercive conduct.
An objecting party must establish dissemination of the conduct upon which it relies in
alleging interference with pre-election conditions. In a recent decision, the Board opined that
even with such serious conduct as threats of plant closure, the objecting party has the burden
of proving dissemination and its impact on the election by direct or circumstantial evidence.
Crown Bolt, Inc., 343 NLRB 776, 779 (2004).7
The circumstances of this case are clearly distinguishable from those presented to the
Board in Phillips Chrysler Plymouth, Inc., 304 NLRB 16 (1991). In Phillips, two union
organizers spoke to bargaining unit employees on the morning of the day of the election. The
employer’s president informed the organizers that they could not enter the shop area until the
9:00 a.m. pre-election conference and asked them to wait in the reception area until that time.
The union agents then engaged in a shouting match with the employer’s president, claiming
that they had a right to be there and that the election would be jeopardized if they were
removed, and refused to leave even after the employer called the police. The Board set aside
the election, noting that the incident occurred in front of all ten bargaining unit employees in
their work area, and that such a “direct challenge to the employer’s assertion of its property
rights could not have been lost on the employees as they began to vote 75 minutes later.” In
the instant case, Russell did not refuse to leave the premises and simply chose to enter the
facility through a public door that did not bring him into contact with bargaining unit
employees. Only the CSRs who were already represented by the Union were present in the
lobby area. Thus, there was no basis for VSA employees to reasonably conclude that the
Employer was unable to protect its legal rights in a confrontation with the Union as found in
Phillips. Chrill Care, Inc., 340 NLRB 1016, 1017 (2003).
There is no dispute that Article 6 of the existing collective bargaining agreement
provides that union representatives are permitted to visit the workplace to talk with bargaining
unit employees; providing that they report to a designated Employer representative upon
entering the property or work space, and as long as such visits do not interfere with any aspect
of operations. Such contract language obviously provides guidelines for a Union
representative’s unscheduled visit to the Employer’s facility. In the instant case, the
Employer was well aware of Russell’s visit to the facility. Kreitner had not only spoken with
Russell prior to the pre-election conference, but the specific time of his visit was anticipated
by the Employer. Susino was dispatched to look for Russell and direct him to the election

7 Overruling its previous decisions in General Stencils, Inc., 195 NLRB 1109 (1972); Coach &
Equipment Sales Corp., 228 NLRB 440 (1977); and Spring Industries, 332 NLRB 40 (2000), in which
the Board had presumed dissemination of plant-closure threats or other kinds of coercive statements.
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site. The evidence indicates that upon arriving at the facility, Russell proceeded toward the
break room and toward Kreitner; the company official with whom he had spoken prior to the
pre-election conference. There is no dispute that Russell did not know Susino and had never
previously dealt with him in a labor relations capacity or any other capacity. In making his
way toward Kreitner and the election area, Russell chose to enter through the front entrance in
order that he might speak to the CSRs and bargaining unit employees that he already
represented. His decision to do so does not appear to be an interference with operations, a
violation of the collective bargaining agreement, or conduct that would otherwise be
objectionable.
More significantly, the Employer has not demonstrated that Russell’s interaction with
either Susino or Kreitner was sufficiently disseminated to bargaining unit employees to have
an effect on the election. Additionally, the record does not support a finding that the incidents
would likely cause fear for the employees or would generate any persistence of the incidents
in the employees’ minds if known to employees. See Reliable Trucking Inc., 349 NLRB No.
79, slip op. at fn. 2 (2007). “There is a strong presumption that ballots cast under specific
NLRB procedural safeguards reflect the true desires of the employees” and the “burden of
proof on parties seeking to have a Board-supervised election set aside is a heavy one.”
Dairyland USA Corporation, 347 NLRB No. 30, slip op. at 6 (2006).
In determining the merits of Employer’s Objection 1, I have analyzed all of the record
testimony with respect to variances and apparent contradiction that is necessary for credibility
resolutions. Surprisingly, there is more consistency than variance in the testimony of Susino,
Kreitner, and Russell. There is no dispute that Susino was struck by the door when Russell
opened it. There is no dispute that Russell used profanity with both Susino and Kreitner.
There is no dispute that Russell touched Kreitner without warning as he walked into the break
room. Although Russell describes the touching as more of a flip of his hand on Kreitner’s
back, Susino and Kreitner describe the touch as striking or hitting Kreitner in the back. All of
the management and employees witnesses who testified concerning this objection appeared to
testify credibly. They appeared to give relatively accurate accounts of what they heard and
observed, limited only by normal lapses in recall and human predilection. Even with the
relative consistency in testimony, however, I do not find merit in the Employer’s Objection 1
for the reasons discussed above. The record as a whole simply does not support a finding that
the conduct underlying Objection 1 is either violative of Section 8(b)(1)(a) of the Act or is
conduct that interfered with the results of the August 30, 2007 election.
Accordingly, I recommend that this Objection be overruled in its entirety.
D. Employer Objection Two
During the critical period, including while the election was in progress, Union officers,
agents, and supporters formed a gauntlet through which employees were required to
walk as they approached the voting area. These acts occurred in the presence of
voting unit employees or otherwise were disseminated to voting unit employees,
thereby interfering with and precluding a free and fair election.
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1. The Employer’s Evidence
Susino was also assigned to escort Russell back to his car after the pre-election
conference. He recalled that after speaking with manager Gregory Wilson in the office,
Russell again entered the main lobby and spoke with Union Steward and CSR Ken Harper.
Russell continued his conversation with Harper as he walked out of the building to the bus
pick-up area. They continued to talk as they walked to the side of the building between the
check-in area and the Gold booth area. They were joined by Union Steward and CSR Penny
Wallace. Susino recalled that Russell spoke with Wallace and Harper prior to his leaving the
facility at approximately 10:08 a.m. Susino was standing approximately 10 feet away from
them during the conversation. Susino confirmed that while Russell went into the main check-
in area after the pre-election conference, Russell did not go near to the door where the VSAs
would have entered the building if they were walking from the vehicle service area.
Susino also recalled that Harper and Wallace walked to the vending machine area on
the other side of the building and continued their conversation until approximately 10:12 a.m.
The vending machine area is approximately three feet outside the building and near to the
building’s outside door that leads toward the VSA pump area. Susino did not see anyone
entering the building during the time that Wallace and Harper spoke in the vending machine
area. Additionally, he did not see Wallace or Harper speak to any VSAs during the time that
they stood near the vending machines. Susino estimated that at approximately 10:12 a.m.,
Wallace went on break and Harper got into his car and left the facility.
Although VSA Robert English was on vacation on the day of the election, he came in
to vote around 10:00 a.m. As he walked passed the vending machines on his way into the
building, he observed Wallace near the vending machines. He did not remember that anyone
was with her. She said nothing to him.
As lead VSA, Samuel Whitley works throughout the Employer’s facility and is not
limited to only the vehicle service area. Whitley recalled that on the day of the election and
sometime between 10:00 a.m. and 1:00 p.m., he observed Harper and Wallace talking outside
the building near the vending machines. Whitley could not recall with certainty how long
Wallace and Harper talked. He went on to explain, however, that it wasn’t a “big deal”
because he knew that they worked there. Whitley recalled that while some people walked
past Harper and Wallace, he could not recall their identity and he did not know if Wallace and
Harper had spoken to the individuals.
Whitley also recalled that prior to talking with Wallace, he observed Harper walking
around near the vehicle service area. Whitley recalled that he was not dressed in his usual
work clothes and he was carrying a brief case. Although Whitley believed that Harper had
spoken with someone while he was in the vehicle service area, he didn’t know who it had
been.
Sara Weaver works as a CSR in the Gold Booth section of the facility. It is
undisputed that the Gold Booth section is located on the opposite side of the main facility
from the vehicle service area. Weaver explained that the booth in which she works has a
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glass window facing a door leading into the building. She took her lunch break between
10:00 and 11:00 on the day of the election. During her lunch break, Weaver recalled seeing
Harper standing outside the main building. She recalled that he had been standing in an area
that is half way between a door leading to the lobby and the door leading to the long hallway
that ran the width of the building. He was facing the Gold Booth section and was turned away
from the door leading into the hallway. She estimated that he may have been in that area for
as long as 15 minutes. She did not recall that he was speaking with anyone in particular.
Additionally, she did not recall how he was dressed or if he carried anything.
2. The Petitioner’s Evidence
Russell testified that after the pre-election conference, he spoke for approximately a
minute with Employer Manager Gregory Wilson about a contract issue involving an
employee in the other bargaining unit. Russell exited the building through the lobby and out
the front door. He saw Harper outside and spoke with him. Because Susino was standing
nearby, Harper introduced Susino to Russell. Russell recalled that he had laughed and told
Harper that he had already met Susino and not under the most pleasant circumstances.
Russell told Susino that there were no hard feelings and that he understood that Susino was
just following directions. Russell added, however, “But just don’t – don’t get in my face and
try to block me anymore.” Russell told Susino that if he had a problem to go somewhere else.
Russell looked at the time on his cell phone and saw that it was a few minutes before 10:00
a.m. He recalled telling Harper that the election would start at 10:00 and he didn’t need to be
there. As he walked to his car, he saw Wallace and spoke with her briefly. Russell testified
that he had been through enough elections and he knew the rules. He explained that he knew
not to be on the property when the election began.
Harper recalled that he arrived at the Employer’s facility at approximately 9:55 on the
day of the election. He denied that he carried any bag or brief case with him. When he
arrived, he saw Russell talking with Kreitner and the Board Agent outside the main building
on the Gold Booth section side of the building. By the time that he reached the area where
Russell was standing, Kreitner and the Board Agent had already left that area. Harper spoke
to Russell. While speaking with Russell, Harper saw employee Naomi Hopper and also
Wallace. Harper also recalled that during this same time, he observed Susino and he
introduced Russell to Susino. In describing this interaction, Harper testified that he and
Russell walked toward the front entrance of the building. Harper testified:
And we were approaching, going toward I think the front entrance, which we
never got there, Bill was saying that we could not go in certain areas or certain
locations. So, when we approached the area, I said, “Well, Bill, what’s
wrong?” I said, “I’ve never seen you in this type of a behavior.” And he said
well he’s ordered to do his job, and we could not go within a certain area. I
said, “Well, you know”, I said, “I’m just here to make sure that there’s fair
play from the previous day’ because there’s a lot of things that happened the
night before.”
Harper estimated that he spoke with Russell no more than 5 minutes. He
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acknowledged that after Russell left the premises, he spoke with Wallace near the vending
machine area for only about two to three minutes. He explained that he had to be at work at
another job by 10:30 a.m. He recalled that as he began to leave, Susino questioned him as to
where he was going. He told Susino that he was leaving to go to his car. He denied that he
spoke with any VSAs while he was in the vending machine area. He further denied that he
ever saw any gauntlet of Union supporters or any Union supporters talking with the VSAs.
Although VSA Robert Morrow was on vacation on the day of the election, he came to
the facility at approximately 4:30 p.m. to vote. Other than his supervisor telling him that it
was time to vote, he spoke with no one prior to voting or after voting. VSA Alioune Ladiane
recalled that he voted prior to working second shift. He estimated that he arrived at the
facility around 1:00 p.m. He did not speak with anyone prior to voting and he did not see any
employees congregating outside the building doors. The parties stipulated that if called to
testify, VSAs Kibula Mantano, Ngole Ngongo, and Joe Williams would give testimony
similar to that of Morrow and Ladine.
VSA Eugene Walker, Jr. voted between 10:30 a.m. and 10:45 a.m. on August 30,
2007. Walker testified that he did not see a gauntlet of Union supporters or any individuals
who blocked his way, attempted to give him materials, or talked to him on his way into vote.
He did not see Russell anywhere on the property on the day of the election. The parties
stipulated that if VSAs Rodney Adams, Curtis Mackay, Haywood Pegues, and Roger Slawson
testified, their testimony would be consistent with that of Eugene Walker, Jr.
3. Discussion
In its post-hearing brief, the Employer maintains that for a period of approximately 15
to 20 minutes at the beginning of the morning voting session, Wallace, Harper, and Russell
positioned themselves outside the two side doors through which VSAs walked to get to the
voting room. The Employer concedes that there is no evidence that any of these individuals
engaged in extended conversations with voters and thus there is no issue of alleged
electioneering. Kreitner, in fact, testified that he was present on the Employer’s property
during the entire election period. He acknowledged that he never observed Union officers,
agents, or supporters forming a gauntlet through which employees were required to walk as
they approached the voting area.
The Employer asserts, however, that the issue is one of coercive monitoring and
surveillance of the doors leading to the polling area. In support of its position, the Employer
cites the Board’s decision in Electric Hose & Rubber Co.,8 in which a supervisor
unexplainably “stationed” himself outside the entrance to the voting area. The Board found
such conduct objectionable, concluding that his purpose was to survey the union activities of
the employees and to convey to the employees the impression that they were being watched.
The Employer also points out that the Board set aside an election in Performance

8 262 NLRB 186, 216 (1982).
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Measurements Co.,9 because of the continued presence of the company’s president at a
location where employees were required to pass in order to enter the polling area.
I find these cases distinguishable. The evidence in the instant case reflects that there
were at least three separate entrances to the hallway connecting to the voting area. As
discussed above, Russell reached the voting area by the hallway leading from the lobby.
Additionally, voting employees could also reach the hallway leading to the designated voting
area by entering the building from the Gold Booth area on the left side of the building or by
entering the building from the vehicle service area on the right side of the building. Thus,
during this brief period of time, none of these Union officials or agents had a direct view of
the door leading to the voting area. Although these individuals may have seen voting
employees entering the building from either side, there is no way that they would have known
who was entering the building to vote or to attend to work related tasks. Under similar
circumstances the Board has not found such conduct objectionable. See J.P. Mascaro &
Sons, 345 NLRB No. 42, slip op. at 4 (2005).
The circumstances of the instant case are more analogous to those in U-Haul Co. of
Nevada, 341 NLRB 195, 196 (2004); a case in which a union representative was present for
approximately 35 minutes in a parking lot outside the building where an election was
conducted. The Board found that while the union representative spoke with a “handful” of
voters, the conduct was not objectionable, noting that the conversations took place outside the
polling area, the waiting area, or near the line of voters.
The Board, supported by the Courts, has repeatedly found that the mere presence of
Union representatives at or near the polling area, absent evidence of coercion or other
objectionable conduct, is insufficient to warrant setting aside an election. Harlan # 4 Coal
Company v. NLRB, 490 F.2d 117, 121-122 (6th Cir. 1974), cert. denied 416 U.S. 986 (1974);
NLRB v. Connecticut Foundry, 688 F.2d 871, 880 (2nd Cir. 1982); Choctaw Provision
Company, Inc., 122 NLRB 474 (1958); Gastonia Combed Yarn Corp., 109 NLRB 585, 587
(1954).
The Employer’s witnesses testified that Harper and Wallace engaged in a conversation
outside the building near the vending machines after the election began at 10:00 a.m. The
witnesses did not confirm that either Wallace or Harper spoke with anyone during the time
that they were in the vending machine area. No witness identified any voting employee who
passed by them to enter the building during this time. Although CSR Weaver recalled seeing
Harper on the opposite side of the building for approximately 15 minutes, he was not facing
the entrance to the building. She did not testify that any individuals passed by him to enter
the building. Although Susino testified that Russell did not leave the Employer’s property
until 8 minutes after the beginning of the election, he did not testify that Russell spoke with
anyone other than Harper and Wallace during this time. He did not testify that Russell spoke
with any employees during this 8 minute period of time or that any employees even entered
the building during this 8 minute period of time. Thus, even crediting all of the Employer’s

9 148 NLRB 1657 (1964).
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witnesses, there is not sufficient evidence that Union officers, agents, or supporters formed a
gauntlet through which employees were required to walk as they approached the voting area.
Accordingly, there is no evidence of conduct that interfered with or precluded a free and fair
election.
Accordingly, for the reasons cited above, I recommend that Employer’s Objection 2
be overruled in its entirety.
III. Summary of Conclusions
As discussed above, the record evidence does not support a finding that there was
conduct by Union officials, agents, or supporters that destroyed the laboratory conditions or
interfered with the holding of a free and fair election among employees on August 30, 2007.
Therefore, I recommend that the Employer’s Objections to Conduct Affecting the Results of
the Election be overruled in their entirety. Furthermore, I recommend10 that the Board certify
the results of the election.
Dated, Washington, D.C. December 31, 2007
Margaret B. Brakebusch
Administrative Law Judge

10 Under the provisions of Section 102.69 of the Board’s Rules and Regulations, Exceptions to this Report
may be filed with the Board in Washington, DC within 14 days from the date of issuance of this Report
and recommendations. Exceptions must be received by the Board in Washington by January 14, 2008.