United Broadcasting Co., of New York

National Labor Relations Board - Board Decisions

Mar 12, 1980

248 N.L.R.B. 403 (N.L.R.B. 1980)

UNITED BROADCASTING COMPANY OF NEW YORK 403
United Broadcasting Company of New York, Inc.
and Alvin V. Jayne, Petitioner and Local 121,
International Brotherhood of Electrical Work-
ers. Case 22-RD-551
March 12, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties on April
16, 1979, an election by secret ballot was conduct-
ed in the above-entitled proceeding on April 27,
1979, under the direction and supervision of the
Regional Director for Region 22 (Newark, New
Jersey). Upon conclusion of the election, a tally of
ballots was furnished the parties in accordance
with the National Labor Relations Board Rules
and Regulations, Series 8, as amended.
The tally of ballots revealed that there were ap-
proximately six eligible voters and that four cast
valid ballots, of which three were for, and one
against, the Union. There was one challenged
ballot, insufficient to affect the results of the elec-
tion.
On May 3, 1979, the Employer filed timely ob-
jections to conduct affecting the results of the elec-
tion. In accordance with the Board's Rules and
Regulations, the Regional Director for Region 22
conducted an investigation and on June 19, 1979,
issued and served on the parties his order directing
hearing and notice of hearing in which he ordered
that a hearing be held before a duly designated of-
ficer for the purpose of taking evidence on the
issues raised by Employer's Objection 2.
The hearing was held on July 18 and August 1,
1979, at Newark, New Jersey, before Hearing Offi-
cer C. John Cicero, duly designated for the pur-
pose, at which time the Employer, the Union, and
counsel for the Regional Director appeared and
participated therein. All parties were afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses, to introduce evidence bearing
upon the issues, and to present arguments and
briefs to the Hearing Officer. On November 21,
1979, the Hearing Officer issued his report and rec-
ommendation on the objection in which he recom-
mended that it be overruled. The Employer filed
timely exceptions and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
248 NLRB No. 65
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organization involved herein claims
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employ-
er within the meaning of Section 2(6) and (7) of the
Act.
4. We find, in accordance with the stipulation of
the parties, that the following employees of the
Employer constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning
of Section 9(b) of the Act:
All engineers employed by the Employer at its
Carlstadt, New Jersey location, excluding all
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
5. The Hearing Officer recommended that Em-
ployer's Objection 2 be overruled. We disagree.'
In Objection 2, the Employer alleges that, during
the critical period prior to the election, the Union,
by its agent and representatives, threatened, co-
erced, and intimidated eligible voters by telling
them that they would be deprived of their employ-
ment in the industry if they failed to support the
Union.
In testimony credited by the Hearing Officer,
employee Ralph Persico stated that on April 24, 3
days before the election, Union Shop Steward
Davila heard and acquiesced in statements made by
another employee telling Persico that if he voted
against the Union his name would be placed on a
blacklist which would be sent to all the radio sta-
tions and would serve to deprive him of future em-
ployment. Credited testimony also establishes that
on April 25 Davila personally advised Persico that
if he voted against the Union his name would go
on a blacklist and that he would not get another
job in a radio station.
The Hearing Officer finds that, although the
above statements would reasonably tend to inter-
fere with, restrain, and coerce an employee in the
exercise of his/her Section 7 rights, the results of
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404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the election were not affected thereby. He rea-
soned that because Persico was delayed in traffic
and did not reach the polls in time to vote and, of
the two employees who had either overheard or
were told about the threats one was ineligible to
vote and the other had cast the undeterminative
challenged ballot, these statements could not have
affected the outcome of the election.
We disagree with this conclusion. The proper
test is whether the conduct involved reasonably
tends to interfere with the free and uncoerced
choice by the employees. The situation presented
here deals with a threat to retaliate against an em-
ployee by means of a blacklist. While there is no
evidence that the Union had ever engaged in such
practice, this is the kind of economic reprisal
which an employee may reasonably believe is
within a union's power. Because the determination
of whether certain conduct warrants setting aside
an election does not turn on the election results,
but rather on its likelihood to coerce prospective
voters to cast their ballots in a particular manner,2
it appears that the statements attributed to Davila
herein fall squarely within the proscription. The
coerciveness of a blacklist derives from the possible
foreclosure of the opportunity to earn a living, and
h1 Great lantric and Paclic lea Company, Inc.. 177 NLRB 942
(1969)
the cited threats directly tie this consequence to
Persico's vote. Further, these threats cannot be
characterized as unobjectionable simply because
they were directed at only one employee. We have
long held that statements made during an election
campaign can reasonably be expected to have been
discussed, repeated, and disseminated among the
employees, and, therefore, the impact of such state-
ments will carry beyond the person to whom they
are directed.3 In this case, where only six employ-
ees comprised the bargaining unit, this presumption
is particularly apt.
For these reasons we find, contrary to the Hear-
ing Officer, that these threats clearly warrant the
setting aside of the election and the directing of a
second election.
ORDER
It is hereby ordered that the election conducted
herein on April 27, 1979, among the employees of
United Broadcasting Company of New York, Inc.,
at its Carlstadt, New Jersey, location be, and it
hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
3 Slandard Knitting lill, Inc, 172 NLRB 1122 (1968)