Urban Telephone Corp.

National Labor Relations Board - Board Decisions

Apr 3, 1972

196 N.L.R.B. 23 (N.L.R.B. 1972)

URBAN TELEPHONE CORPORATION
Urban Telephone Corporation and International
Brotherhood of Electrical Workers , AFL-CIO, Peti-
tioner. Case 30-RC-1432
April 3, 1972
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVES
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Regional Director for Region 30 of the
National Labor Relations Board on March 19, 1971,
an election by secret ballot was conducted in the
above-entitled proceeding on April 16, 1971, under
the direction and supervision of said Regional Direc-
tor. Upon the conclusion of the election, a tally of
ballots was furnished the parties in accordance with
the Board's Rules and Regulations. The tally of bal-
lots shows that there were approximately 33 eligible
voters and that 32 ballots were cast, of which 17 were
for, and 15 were against, the Petitioner. There were no
challenged ballots.
On April 23, 1971, the Employer filed timely objec-
tions to conduct affecting the results of the election.
The Regional Director completed an investigation of
the objections and, on June 2, 1971, issued and served
on the parties his Report and Recommendations on
Objections and Notice of Hearing. By letter dated
June 7, 1971, the Petitioner excepted to the alleged
failure of the Employer to serve a copy of its objec-
tions on the Petitioner as required by Section 102.69
of the Board's Rules and Regulations. On June 10, the
Regional Director issued his Supplemental Report
and Recommendations on Objections.
In his report, the Regional Director recommended
that Employer's Objections 2 and 3 be overruled and
directed a hearing on Employer's Objection 1. In his
supplemental report, the Regional Director ordered
that the hearing be expanded to include the eliciting
of evidence on the question of whether the Employer
compiled with the Board's Rules and Regulations
concerning service of a copy of its objections on the
Petitioner. Thereafter, the Employer filed timely ex-
ceptions to the Regional Director's report and supple-
mental report.
On September 10, 1971, the Board issued a Deci-
sion and Order' in which it adopted the recommenda-
tions made by the Regional Director in his report and
supplemental report and ordered the case remanded
to him for the purpose of arranging the hearing which
1 Unpublished.
23
he had directed.
Pursuant thereto, a hearing was held before Hear-
ing Officer George Strick and on December 20, 1971,
the Hearing Officer issued and served on the parties
his Report on Objections With Findings and Rec-
ommendations. Upon consideration of the evidence
presented, the Hearing Officer found that the Peti-
tioner was not prejudiced by the Employer's failure to
serve it with a copy of the objections, and recom-
mended that the Petitioner's exception be denied and
the Employer's Objection 1 be considered on its mer-
its. Upon consideration, the Hearing Officer found
Objection 1 without merit and recommended that it
be overruled and that a certification of representative
issue.
Thereafter, the Employer filed timely exceptions to
the Hearing Officer's Report on Objections With
Findings and Recommendations and requested that
the election be set aside and a new election directed.
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.
The Board has considered the Employer's ojbec-
tions, the Hearing Officer's report, the exceptions,
and the entire record in this case, and hereby adopts
the Hearing Officer's findings and recommenda-
tions?
Accordingly, as we have overruled the Employer's
objections in their entirety and the tally of ballots
shows that the Union has received a majority of the
valid ballots cast, we shall certify it as the exclusive
bargaining representative for the employees in the
appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
votes has been cast for International Brotherhood of
Electrical Workers, AFL-CIO, and that, pursuant to
Section 9(a) of the Act, the said labor organization is
the exclusive representative of all the employees in the
unit found appropriate for the purpose of collective
bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment.
CHAIRMAN MILLER, dissenting:
We have in this record evidence indicating that
threats of physical harm were made to employees if
they failed to vote for the Union, and that these
threats were made by a man with some reputation for
2 The Hearing Officer's recommendation that the Petitioner's exception to
the Employer's failure to serve it with a copy of the objections be denied is
adopted pro forma. The Hearing Officer's findings and recommendations
with respect to Objection I are set forth in the portion of his report on
objections attached hereto as an appendix.
196 NLRB No. 6
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violent conduct. We also know that the election was
won by the Union by the narrow margin of two votes.
For reasons expressed in my dissent in White-Knight
Mfg. Co., 195 NLRB No. 195, I am unwilling to treat
such conduct as permissible fun and games merely
because it was not shown that the threats were made
by a union agent . It is the atmosphere in which our
elections are conducted which is the decisive factor,
and in my view there may well be enough evidence
here to justify setting aside the election. I would, how-
ever, before ruling finally on this matter, remand the
case for a further hearing in order that the employee
who was alleged to have made the threats could be
subpenaed to testify, so that we might have a full and
complete record.
APPENDIX
Objection No. 1:
Employer's objection 1 alleges as follows:
During the period before the election an individ-
ual acting on behalf of petitioner intimidated,
threatened and/or coerced an eligible voter.
In support of this objection, the Employer pre-
sented testimony from its vice president, John Schaf-
er, on the alleged threats made by employee George
Rodriquez, and on the agency relationship between
Rodriquez and the Petitioner. Schafer testified on the
following four incidents:
1. After a meeting with all employees conducted by
Schafer 2 days before the election, Schafer and the
employees were in a lounge area having coffee . Schaf-
er was standing with his back to Rodriquez and thus
could not see who Rodriquez was talking to, but over-
heard Rodriquez say that if the Union did not get in,
and he (Rodriquez) found out who voted against the
Union, there would be some smashed faces. Schafer
testified that he did not receive any complaints from
other employees about this alleged threat.
2. Two days after the election, an employee came
into Schafer's office , and after receiving assurances of
confidentiality, told Schafer that several days prior to
the election he overheard Rodriquez telling three or
four other employees that if the Union did not get in,
he (Rodriques) "would take names and kick asses."
This employee was approximately 25 feet away from
Rodriquez, and did not identify the employees with
whom Rodriquez was speaking.
At the hearing Schafer was asked if the Employer
had informed the employees that the election would
be conducted by secret ballot. Schafer replied that the
Employer had made such a statement at meetings to
the employees and that the employees were aware that
they would be voting by secret ballot.
3. Sometime in early May 1971, Schafer was visiting
a jobsite when a second employee requested and re-
ceived permission to speak privately and confidential-
ly with him. The employee related that Rodriquez had
said that the employee would be sorry if he did not
vote for the Union. Although this employee told
Schafer that he was afraid his property might be
burned, there is no evidence to show that Rodriquez
made such a statement to the employee.
4. The final conversation between Schafer and a
third employee took place in early June when Schafer
was visiting a jobsite. This employee also asked to
speak privately and confidentially with Schafer, who
said he could. The third employee said that he has
been pressured and called names by Rodriquez, and
an unidentified other employee, to attend union meet-
ings or that if the Union did not get in, this third
employee would be sorry or in big trouble. Schafer
asked why the employee waited so long to tell him
about the incident. The employee replied that the Em-
ployer apparently could not do anything. Schafer said
that he was sorry and the Company has to go by the
rules, but does not condone any violence. Schafer,
without any request from the employee, then suggest-
ed that if the employee was concerned about the safe-
ty of his family and property, he should contact the
local police. However, there is no evidence that the
employee asked for police protection.
Schafer described Rodriquez as 6 feet 2 inches tall,
weighing about 240 pounds and having a false right
eye which is apparently disconcerting to people who
do not know him. According to Schafer, Rodriquez
has a reputation in the Clintonville-Shawano area for
fighting, but Schafer has never seen any records from
local police departments showing arrest or conviction
for such behavior. Schafer further testified that Rodri-
quez has been employed 3 or 4 years and in that time
prior to the advent of the Petitioner's organizing cam-
paign, Rodriquez had never been accused of threaten-
ing or fighting with any employees.
Regarding the matter of whether Rodriquez was an
agent of Petitioner, Schafer testified that during the
Employer's meeting with the employees on or about
April 15, 1971, Rodriquez asked for permission to
speak. Upon receiving such permission from Schafer,
Rodriquez supposedly said, "The Union is having a
meeting tonight, and on behalf of the Union, we'd like
you all to be there, and I hope that we have as good
an attendance at the union meeting tonight that we
have here."
Schafer also testified that the Employer held several
meetings during the week before the election and that
Rodriquez asked questions or made statements indic-
ating a prounion attitude. Schafer further stated that
other employees also asked questions at these meet-
ings, but that Rodriquez was the most vocally proun-
ion. Schafer merely assumed that Rodriquez was
URBAN TELEPHONE CORPORATION
authorized to speak for Petitioner because of feed-
back from employees that Rodriquez, among others,
was promoting the Union. However, Schafer knew
from employee feedback that the employees had
elected other employees, not Rodriquez, to be stew-
ards and spokesmen for the employees. Yet in view of
these apparent inconsistencies , Schafer never sought
to contact either Conway or De Vries to clarify Rodri-
quez' status.
Also in support of its position that Rodriquez was
an agent of Petitioner, the Employer submitted letters
dated June 3 and 4, 1971, from De Vries addressed to
the Regional Office with copies sent to Rodriquez and
a former employee, William Pieper.
In lieu of Rodriquez' being called to testify, the
parties stipulated to the introduction and authenticity
of Rodriquez' affidavit given to the Board Agent in-
vestigating the objections. In his affidavit, Rodriquez
stated that on or about April 14, he was speaking with
some friends, who were also prounion, in the
Company's Shawano parking lot, and stated to those
people that if the Union did not win the election, he
would take names and kick ass. Rodriquez further
stated that he never had been appointed by De Vries
as spokesman for the Union, never had been asked by
DeVries to speak in favor of the Union, and never had
been designated union steward.
De Vries and Wruck testified that no employee had
been designated to act or speak on behalf of Petitioner
and/or Local 577. De Vries specifically stated he in-
formed the employees that only he or Conway could
act or speak on behalf of the Union. De Vries admit-
ted that Rodriquez was one of several employees who
was known as a contact man, but insisted that Rodri-
quez had never been authorized or designated to
speak on behalf of the Union.
With respect to the alleged threats, De Vries testi-
fied that prior to the election he heard that the Com-
pany was claiming that Rodriquez was threatening
employees. Prior to the election, neither De Vries nor
Conway received any complaints from employees or
directly from the Company on this matter. However,
De Vries brought up this subject at a preelection
meeting with the employees and no incidents were
mentioned.
CONCLUDING FINDINGS AND
RECOMMENDATION
The issues raised by Objection No. 1 are whether
an agency relationship existed between Rodriquez
and Petitioner, and to what extent, if any, Rodriquez'
remarks may have affected the outcome of the elec-
tion.
With respect to the issue of agency, the Employer
relies upon Rodriquez' statements in favor of the Un-
25
ion made at meetings called by the Employer; Rodri-
quez' invitation to the employees to attend the
Union's meeting; and the fact that De Vries sent Ro-
driquez a copy of his letters to the Regional Office
dated June 3 and 4, 1971.
The record reflects that Rodriquez and at least one
other employee were "contact men" for the Union.
De Vries testified that a "contact man" is a self-ap-
pointed volunteer who acts as a liaison man between
the employees and Union, but receives no benefits
from the Union and has no authority to speak for the
Union. One of the functions of a "contact man" is to
relay information between the employees and the Un-
ion and for this reason De Vries apparently sent a
copy of the June 3 and 4, 1971, letters to Rodriquez
and Pieper.
Although Rodriquez spoke in favor of the Union
and invited employees to attend a union meeting,
such actions are not sufficient to establish the agency
relationship. I consider the phrase "On behalf of the
Union," even if used by Rodriquez in his invitation to
the employees, more a figure of speech in making this
statement, rather than a designation that he was a
spokesman for the Petitioner. This is further substan-
tiated by the fact that Rodriquez was not even one of
the employees who had been elected as steward.
The record shows that Rodriquez was, at best, an
advocate of the Union and the Board has long held
that such advocacy by a rank-and-file employee does
not make that employee an agent. Poinsett Lumber
and Manufacturing Company, 107 NLRB 234.
The record is devoid of any evidence that Rodri-
quez actively solicited membership or authorization
cards for Petitioner, that Rodriquez openly presented
himself to the employees as an organizer or represent-
ative of Petitioner, or that Petitioner knew of and
condoned Rodriquez' union activities, if any. District
30, United Mine Workers of America (Terry Elkhorn
Mining Company, Inc.), 163 NLRB 562. Accordingly,
I find that at all times material herein Rodriquez was
not an agent of Petitioner.
Turning now to the content of the statements attrib-
uted to Rodriquez, the Hearing Officer notes that
there are no substantial conflicts in the testimony on
this point inasmuch as the parties agreed to accept
Rodriquez' affidavit into evidence in lieu of his testi-
mony. For the purpose of this hearing, and particu-
larly in the absence of any statement in Rodriquez'
affidavit to the contrary, I will accept that Rodriquez
did make all of the statements attributed to him in
Schafer's testimony. In determining the extent, if any,
that Rodriquez' statements may have affected the out-
come of the election, I will consider not only the state-
ment itself, but also the context in which the remark
was made and the physical appearance of Rodriquez.
The first statement was made 2 days before the
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election after a company meeting of all employees
and is a conditional statement to the effect that if the
Union did not receive a majority of votes and if he
found out who voted against the Union , there would
be some smashed faces . Schafer testified that the Em-
ployer repeatedly had informed employees that the
election would be conducted by secret ballot. This
information is also emphasized in the Board 's Notice
of Election which was presumably posted on the
Employer 's premises before the election . In view of
the foregoing, it is evident that the employees who
heard Rodriquez ' statement and may have been con-
cerned, could evaluate this statement in the light of
the assurances given by the Board and Employer, and
conclude that Rodriquez had no ability to find out
how any employee voted. This is further supported by
the fact that no employee ever complained to Schafer
about this statement, and that Schafer apparently did
not consider the statement to be of sufficient impact
to warrant a response . I therefore find that the em-
ployees could have, and apparently did, reason that
Rodriquez could not have carried out his threat and
that this statement did not interfere with the employ-
ees' freedom of choice in the election . Rio de Oro
Uranium, Inc., 120 NLRB 91, 94.
The next incident took place in Schafer's office
about 2 days after the election when an employee told
Schafer that several days prior to the election the
employee overheard Rodriquez tell several other em-
ployees that if the Union did not get in, he (Rodri-
quez) would take names and kick asses . The employee
was not able to identify the people with whom Rodri-
quez was speaking, nor was he able to present this
statement in context . Based upon all the evidence in
the record, it appears and I find that the incident
related to Schafer by the employee, and the conversa-
tion described by Rodriquez in paragraph 3 of his
affidavit are the same . Rodriquez admits making the
statement but to coworkers who were good friends
and in favor of the Union. The Board has long held
and I so find that such statements between good
friends are not sufficient to prevent or impair a free
and unfettered choice of representatives . Poinsett
Lumber and Manufacturing Company, 107 NLRB 234,
236.
The third conversation between Schafer and an-
other employee took place in early May. As told to
Schafer , Rodriquez said that the employee would be
sorry if he did not vote for the Union. There is no
evidence that Rodriquez threatened the employee
with any physical injury or property damage.
The fourth conversation between Schafer and a
third employee is of a similar nature . However, in his
testimony , Schafer was less accurate in his description
of this conversation Rodriquez had with the employ-
ee. Again the record is devoid of any evidence that
Rodriquez threatened this employee with any phys-
ical injury or property damage or that the employee
sought police protection.
Contrary to the Employer, I am not persuaded that
the last two incidents were of such a nature as to have
interfered with the employees' free and untrammeled
choice. Essentially Rodriquez told each employee that
the employee would be sorry if the Union did not get
in. There is no evidence of any independent threat by
Rodriquez to these latter two employees, nor did the
Employer present evidence describing the context of
these statements . In considering all relevant testimo-
ny, I find these statements to be patently ambiguous
and could very well be interpreted that the employee
would be sorry to lose the benefits of union represent-
ation. Although there is testimony that Rodriquez
supposedly has a reputation in the community for
fighting, Schafer admitted that in the several years of
his employment prior to the organizing campaign,
Rodriquez was never accused of threatening or fight-
ing with coworkers. Further, it seems inconsistent that
an employee who was threatened and concerned
about the safety of himself and his property should
wait approximately 3 and 7 weeks respectively before
informing the Employer of the conversation with Ro-
driquez. This is particularly noteworthy in view of the
language in the Employer's letter of March 22, 1971,
that the "Corporation will insist on the protection of
employees' rights provided by law," and that employ-
ees who have questions should not hesitate to get in
touch with his supervisor or with Schafer. It is possible
that the employees who have questions should not
hesitate to get in touch with his supervisor or with
Schafer. It is possible that the employees involved in
these last two incidents may have, of their own ac-
cord, merely reacted to the Employer's objections,
and in view of the passage of time, may have exagger-
ated in their own minds the impact of these conversa-
tions.
Having found that Rodriquez' statements were not
attributable to the Petitioner, the remaining issue is
whether his conduct was so aggravated as to create a
general atmosphere of fear and reprisal rendering the
free choice of representatives impossible. Poinsett
Lumber and Manufacturing Company, 116 NLRB
1732.
In the case where rank-and-file employees threat-
ened coworkers with physical harm if they did not join
or support the Union, the Board, in overruling the
objections, held
While the Board will consider conduct not at-
tributable to any of the parties in determining
whether an election should be set aside, the
Board accords less weight to such conduct than
to conduct of the parties. The Board believes that
the conduct of third persons tends to have less
URBAN TELEPHONE CORPORATION 27
effect upon the voters than similar conduct at-
tributable to the employer who has , or the union
which seeks , control over the employees ' working
conditions . Furthermore, were the Board to give
the same weight to conduct by third persons as
to conduct attributable to the parties , the possi-
bility of quick and conclusive election results
would be substantially diminished . The employer
and the union are deterred from election miscon-
duct by the unfair labor practice provisions of the
Act and by the trouble and expense which re-
peated elections impose upon them . The absence
of similar deterrents against third persons who
wish to forestall a conclusive election may make
them more prone to engage in conduct calculated
to prevent such a result . Orleans Manufacturing
Company, 120 NLRB 630, 633.
In the case at hand , as well as the Orleans case, the
employee making the statement was not an officer or
agent of Petitioner , was not so closely associated with
Petitioner at time of the alleged threat as to warrant
other employees into believing that he had authority
to act for the Union , and there is no evidence that
Petitioner authorized , ratified or condoned such con-
duct . For these reasons , as well as the vague and
ambiguous nature of Rodriquez ' statements in the last
two incidents , I find that Rodriquez ' four statements
were not of a sufficient character so as to warrant
setting aside the election.
In light of the foregoing, as well as all of the evi-
dence contained in the record , I find that Employer's
objection 1 does not raise substantial or material is-
sues with respect to the conduct of the election. Ac-
cordingly , it is hereby recommended that Employer's
objection 1 be overruled in its entirety and that a
certification of representative issue . Tunica Manufac-
turing Company, Inc., 182 NLRB 729; Owens-Corning
Fiberglas Corporation, 179 NLRB 219.