Western Waste Industries, Inc. Of Florida

National Labor Relations Board - Board Decisions

Feb 20, 1985

274 N.L.R.B. 173 (N.L.R.B. 1985)

WESTERN WASTE INDUSTRIES
Western Waste Industries , Inc. of Florida and La-
borers' International Union of North America,
Local 517, AFL-CIO. Cases 12-CA-11007 and
12-RC-6417
20 February 1985
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 28 September 1984 Administrative Law
Judge Frank H. Itkin issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The Board has considered the decision and
the record in light of the exceptions and brief and
has decided to affirm the judge's rulings, findings, i
and conclusions2 and to adopt the recommended
Order as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Western Waste Industries, Inc. of Flori-
da, Cocoa, Florida, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Insert the following to replace the paragraph
ordering that the Union's objections to the election
be sustained.
"IT IS FURTHER ORDERED that the election con-
ducted on 2 December 1983 in Case 12-RC-6417
be set aside, and a new election held."
[Direction of Second Election omitted from pub-
lication.]
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The unfair labor practices in the complaint in this case were further
alleged by the Regional Director to be objectionable conduct, not specifi-
cally contained in objections to the election in Case 12-RC-6417, in his
"Order Approving Withdrawal of Certain Objections and Directing
Hearing on Objections and Consolidating Cases " The Respondent has
not excepted to the Regional Director's discovery and the judge's consid-
eration of conduct not specifically mentioned in the Union's objections
We agree with the judge that the Respondent's conduct in violation of
Sec 8(a)(1) of the Act consisting of unlawful threats and interrogations
during the critical preelection period warrants setting aside the election
and holding a second election For this reason we find it unnecessary to
pass on the Union's Objections I and 2 to the election in Case 12-RC-
6417
DECISION
173
FRANK H. ITKIN, Administrative Law Judge On Sep-
tember 29, 1983, the Union filed a petition with the
Board in Case 12-RC-6417, seeking to represent a unit
of the Company's employees at its facility in Cocoa,
Florida On October 19, 1983, the Union and the Em-
ployer executed a Stipulation for Certification Upon a
Consent Election, which was later approved by the
Board's Regional Director The unit, as provided in the
stipulation, included employees at both the Employer's
Cocoa and Titusville facilities. On December 2, 1983, a
Board-conducted election was held There were approxi-
mately 58 eligible voters, 19 votes were cast for the
Union; 33 votes were cast against the Union; and 6 bal-
lots were challenged. On December 7, 1983, the Union
filed timely objections to the Employer's conduct which,
it was alleged, "substantially impaired the fairness and
outcome of the instant election " On December 21, 1983,
the Union also filed unfair labor practice charges in Case
12-CA-11007 On January 18, 1984, a complaint issued
in Case 12-CA-11007, alleging, inter alia, that the Em-
ployer had violated Section 8(a)(1) of the National Labor
Relations Act by threatening employees that they would
have to pay for their group insurance and uniforms if
they selected the Union as their bargaining representa-
tive; by coercively interrogating employees about their
union interests and desires; and by further threatening
employees with loss of their insurance and other benefits
if they selected the Union as their bargaining representa-
tive 1 On January 19, 1984, the Regional Director en-
tered an order approving the request of the Union to
withdraw certain of its objections, and directing a con-
solidated hearing on the remaining objections with the
pending unfair labor practice case The Regional Direc-
tor noted,
Although not specifically alleged in the objections,
the 8(a)(1) conduct described in the complaint in
Case 12-CA-11007 occurred during the critical
period, and the evidence bearing on said conduct
was presented to or was discovered by the under-
signed during the course of the concurrent unfair
labor practice and objections investigation. Since
said evidence may bear on the Union's objections as
well as the unfair labor practice charge . . [the]
cases should be consolidated for purposes of hear-
ing 2
A consolidated hearing in both the unfair labor prac-
tice and representation cases was conducted before me in
Cocoa, Florida, on March 7 and 8, 1984 On the entire
record, including my observation of the demeanor of the
witnesses, and after due consideration of the briefs filed
by counsel, I make the following
' The complaint was amended at the hearing to allege additional coer-
cive conduct
2 As will be discussed below, the two pending objections which the
Regional Director determined raise substantial and material factual issues
involve the failure of the Employer to post a notice of election at its Ti-
tusville facility and the Employer's alleged entering and electioneering in
the polling area
274 NLRB No. 35
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE UNFAIR LABOR PRACTICE CASE
Respondent Employer is engaged in the business of
trash collection for commercial and residential custom-
ers, with facilities in Cocoa and Titusville, Florida. Re-
spondent is admittedly an employer engaged in com-
merce, as alleged. The Union is admittedly a labor orga-
nization , as alleged . The evidence pertaining to the Em-
ployer's alleged coercive conduct is summarized below.
Albert Pearson Jr., employed by Respondent Employ-
er as a driver, testified that about mid-November 1983,
following the filing of the representation petition by the
Union and the initiation of its organizational effort, Com-
pany Supervisor James McGlashan approached him
while he was on his assigned route, and then had the fol-
lowing conversation with Pearson and his coworkers:
He [McGlashan] said to me [Pearson], and the
group, "How do you stand?" I said , "What do you
mean , how do I stand?" He said, "About the Union,
are you for it or against it?" I said, "Well, I am for
whatever betters me. If the Union will put money
in my pocket, I will go with the Union. If the Com-
pany will better me . . I will go with them."
He told us, "if we went Union, that our insur-
ance , family plan insurance which the Company
pays half . . . they won't pay half, we will have to
pay it. The other insurance , which the Company
furnishes free for the employees, he says that we
will have to pay for that. He said the uniforms, we
will have to pay for that."
I said , "Well they are not paying for that now. I
pay for my own." He said, "Also, they are going to
cut you back to minimum wage if we go Union."
McGlashan and Pearson then "argued back and forth."
Pearson stated: "If they cut me back to minimum wage,
I quit , they wouldn't have to fire me "
Pearson also testified that " sometime in November,"
while at the Employer's facility, Company Supervisor
Gerry Orders, accompanied by Supervisor McGlashan,
had the following conversation with him.
He [Orders] wanted to know how I stand on the
Union part. . . . Was I for the Union or not.. .
He asked me how I was to vote. Was I going to
vote for the Union or the Company. . . . I asked
him, "Well, we are not supposed to talk about the
Union in the compound," and he said, "Well don't
worry about that." Mr. McGlashan said ". . . don't
worry about that. That has already been arranged."
Well, I said, "I am for whoever is the best. If the
Union is the best, I'll go with the Union. If the
Company is the best, I'll go with them."
Supervisor Orders "said that the Company asked him to
find out who was for or against . . the Union "
Pearson, about this same time, attended a company
"safety meeting" at the Holiday Inn in West Cocoa,
Florida. There, according to Pearson, Company Repre-
sentative Henry Brown told the assembled employees:
"[I]f we went Union, we would have to be paying for all
insurance and uniforms and stuff like that?"3
Nicky Chapman, employed by the Company as a
driver, testified that he too attended a "safety meeting"
about mid-November 1983 Chapman recalled that Com-
pany Representative Brown "was reading" from a "pre-
pared statement, and he said . if the Company went
Union we would have to pay for our own insurance
things. .. " Chapman was asked- "Do you know
whether or not Mr. Brown was reading something at the
time that he made the [above] statement?" .. . Chapman
explained: "He had papers in his hand .. . I have no
way of knowing . . . if he was reading or . . just
speaking."
Chapman further testified that about a week before the
representation election, Supervisor Orders approached
him "in front of the coffee room" at work, "and asked
me how I felt about the Union." Chapman recalled-
I [Chapman] told him [Orders] that I was going
for either side that would give me the best financial
deal. The most benefits and you know, like I said,
better off for me.
Orders "just kind of walked away."4
William Anderson, employed by Respondent, testified
that during mid-November, while he was working his
route with driver Pearson, Supervisor McGlashan ap-
proached the employees and had the following conversa-
tion:
I was working and putting some garbage in con-
tainers . . . . All of a sudden I [Anderson] seen
[McGlashan] come up. And he was over there talk-
ing to Albert Pearson and Isaac Thomas, who I
work with. And he was asking, "How do we stand
with the Union?" I did not reply to tell the truth. I
know that it wasn 't right to ask us that
He [McGlashan] asked us, "How did we stand
for the Union?" I told him that I was for it, for
whatever was best for my family. And he said,
.You should not go for the Union because you
know there is so much disadvantage."5
Isaac Thomas, employed by Respondent, testified that
during mid-November Supervisor McGlashan ap-
proached him and coworkers Pearson and Anderson,
3 On cross-examination , Pearson acknowledged that periodically,
during this campaign, he wore a union button at work and he was a
union observer at the election Pearson explained his role at the election
as "I was a poll sitting "
4 On cross-examination, Chapman acknowledged that he wore a union
button "about two days" before the election
5 On cross-examination, Anderson agreed that McGlashan, during this
conversation, stated "You ought to be against the Union, and if the
Union gets in you may lose insurance and you may lose safety equip-
ment " Anderson insisted "He said whatever we had right then
would be taken from us " Anderson explained
He didn't say bargain He said that everything would be taken from
us, and we would have to start back over
WESTERN WASTE INDUSTRIES
. and then he [McGlashan] asked me [Thomas] if
I was for the Union or against it. I told him I was
for the Union, and then him and Albert had a con-
versation, and I overheard them saying that if the
Union gets in here, they was going to fire the men
. . . there was going to be a big decrease in wages.6
Thomas further testified that about 4 days after a
"safety meeting," which was held "around November 16,
1983," Supervisor McGlashan, while driving Thomas to
a truck site,
. .. asked me again, was I for the Union or against.
And, I told him again that I was for the Union.
And then he said, "Your brother said he ain't for
the Union," and then he started talking about
gloves, `cause I ain 't wearing the gloves.7
Clarence Stanley, previously employed by Respond-
ent, testified that "about two or three weeks before the
election," Supervisor McGlashan had the following con-
versation with him and two coworkers while they were
"collecting garbage":
We was on the route picking garbage. Jimmy
[McGlashan] comes in front of us, got out of the
truck, and called for me to get out, and come to the
back of the truck. He said, "If the Union comes in,
we will have to pay for all of our uniforms and our
own insurance " . . . He asked me, "Which way are
you going to vote?" I told him that I would be in-
dependent, that I wouldn't be for the Union or the
Company
J C. Green, employed by Respondent, testified that
during November 1983, Supervisor McGlashan "came
out to the truck and asked us if we was going to vote for
the Union, and I walked off." Coworkers Clarence Stan-
ley and Leroy Scott were present. Green further testified
that Company Manager Charles Armstrong, "when we
came in with the truck . . . asked me which way we was
going, and I walked off." Green placed this incident "on
the voting day." In addition, Green recalled that, at a
"safety meeting," Company Representative Brown "said
that if the Union came in we would have to pay for our
own insurance."
Johnny B. Ingram, employed by Respondent, testified
that about November 22 or 29, 1983, Supervisor McGla-
shan approached him and his coworkers "on their
route," and they had the following conversation:
Well, we was loading trash and garbage in the back
of the truck . . . He [McGlashan] pulled up behind
us . . and then he asked us, how did we feel about
the Union. . . . I didn't say anything. . . . He was
telling us, if we get the Union, that all of our bene-
fits that they was now paying, like the insurance,
6 On cross-examination, Thomas recalled McGlashan stating, inter alia,
"that there would be a cut in wages if the Union gets in" and "he was
going to fire a lot of guys
' On cross-examination, Thomas recalled that another employee was
present during the above conversation
175
and I was already paying for my clothes, that we
were going to have to pay for all of that.
Employee Robert Blackmon testified that he was
present during the above incident involving Supervisor
McGlashan. Blackmon explained-
Well, I was in the cab at the time he [McGlashan]
drove up . . and so he said, "I [McGlashan] want
to talk with your men about something." He said.
"This Union, I want to talk to you all about this
Union . . . How do you feel about the Union." I
told him, I didn't know He said. "Well, if you get
the Union you would lose your uniform and insur-
ance."
Employee Willie Jeff Kimbrough also witnessed the
above incident. Kimbrough recalled that Supervisor
McGlashan
asked us what we thought about the Union. I told
him, I don't know. He said that if we had the Union
that we would have to pay for our uniforms.8
Charles C. Armstrong, operations manager for the
Employer, testified that he had received written instruc-
tions pertaining to the role of supervisors in opposing an
organizational drive by the Union. (See, e.g., R. Exh 11,
"The Supervisor's Handbook On Maintaining Non-Union
Status," and R Exh. 10, "Confidential Supervisory
Manual For Fleckinger Refuse, Inc.") Armstrong
claimed that on December 2, the date of the election, he
in fact had a "conversation" with employee Green and
his coworkers. Armstrong spoke to Green and his co-
workers about the removal of Christmas ornaments from
their trash removal vehicle, because such ornaments
could impede the flow of air "around the radiator."
Armstrong added that Green was "really mad about it."
Armstrong also noted: Green "was wearing a Union
button indicating that he was for the Union." Armstrong
denied saying "anything about the Union or the election
to any of those employees."
Henry Brown, general manager for Respondent during
the pertinent period, testified that he addressed the as-
sembled employees at the Cocoa and Titusville facilities
on November 16 and 17, 1983, respectively. Brown iden-
tified Respondent's Exhibit 12, a 15-page document, as
the text of his "remarks," from which he read Brown ex-
plained:
I told the employees that I was going to deliver a
talk that was prepared to be given by Charles
Wilson, who is the regional vice-president but who
was called out of state. ... And I proceeded to
read the text.
Brown acknowledged that, after "reading the text," he
"asked if there were any questions." Brown claimed that
he apprised the assembled employees:
8 On cross-examination, Kimbrough explained that McGlashan "said, if
we win, the Union, that we would have to pay for our own uniforms"
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I want you to understand that I cannot answer any
of your questions that could be attributed as making
a promise or a threat to you.
"There were some questions." Brown was asked, on
cross-examination , "Do you recall talking about any ben-
efits?" He responded
No. If it was in the speech, I read it. But I would
have to look at it again and read it through.
Jimmy McGlashan, supervisor for Respondent, has
some nine refuse trucks under his "direction," each truck
having a crew of one driver and two toters. McGlashan
testified that he had received Respondent's Exhibits 10
and 11, pertaining to union organizational activities, and
he "followed the guidelines outlined in those exhibits."
McGlashan acknowledged that he met with driver Pear-
son and toters Thomas and Anderson on their route
during November 1983. McGlashan testified.
Well, I went out and talked to them about the
Union. And I go up to them and I tell them that
they are grown men, and I cannot tell them how to
vote. That they can vote whichever way they
wanted, but I would like for them to vote for the
Company good.
In addition, McGlashan referred to "insurance and all,"
I told them that the Company paid for that now,
and it dust may be that I didn't know how the bar-
gaining went between the Company and the Union,
but, you know, if there may be differences, they
may have to pay all the insurance.
McGlashan denied, inter alia, statements attributed to
him by the above employee witnesses.
McGlashan, as he further testified, also met with em-
ployees Stanley, Green, and Scott on their route. McGla-
shan assertedly "said the same things to them, that [he]
did to the others." McGlashan denied, inter alia, state-
ments attributed to him by these employee witnesses
McGlashan asserted: "In fact, J. C. [Green] won't talk.
He went down to the next stop." In addition, McGla-
shan, as he recalled, met with employees Blackmon,
Ingram , and Kimbrough on their route. McGlashan as-
sertedly made similar statements to them. He again
denied, inter alia, statements attributed to him by these
employee witnesses. He assertedly told the employees
that "if the Union came in" they "may have" "to keep
paying for their uniform" - "it was just according to
the way the bargaining. . . went." Further, McGlashan
denied, inter alia, interrogating employee Thomas.9
Robert Gerry Orders, a supervisor for Respondent,
testified that he too read Respondent's Exhibits 10 and
11, pertaining to organizational activities. Orders claimed
that employee Pearson wore a union button "a day or
two before" the election, that Pearson was "openly out-
spoken in favor of the Union"; that he spoke with Pear-
9 On cross-examination, McGlashan admitted that the "owner, boss
man, Mr Wilson, Mr Brown told" him "to talk to the employees
about the Union " McGlashan, however, denied that he was told "to find
out how they [the employees] feel about the Union "
son, with McGlashan present; and that "I [Orders] dust
asked him how he felt, you know, about the Union or
whatever " Pearson "basically . said that he didn't
know, or something like that." Orders denied, inter alia,
other statements attributed to him. Orders, in addition,
recalled asking employee Chapman "how he felt" -
Chapman "basically . . said he was going to think it
over." Orders claimed "I didn't ask him anything out of
line, I don't think "
Edwin J Rosinski, general manager for Respondent,
testified that Brown, when he delivered his speech to the
assembled employees on November 16, "read the
speech." The "same" speech was said for both the Cocoa
and Titusville employees. Rosinski also testified that he
witnessed the "heated argument over Christmas decora-
tions" involving employee Green
I credit the testimony of employees Pearson, Chap-
man, Anderson, Thomas, Stanley, Green, Ingram, Black-
mon, and Kimbrough, as detailed supra. They impressed
me as trustworthy witnesses. Their testimony is in signifi-
cant part mutually corroborative of management's re-
peated acts of interrogation and threats of loss of bene-
fits. Their testimony is even substantiated in part by ad-
missions and acknowledgements of Respondent's wit-
nesses . And, insofar as the testimony of Manager Arm-
strong, Manager Brown, Supervisor McGlashan, Super-
visor Orders, and Manager Rosinski differs from or con-
flicts with the testimony of the above employee wit-
nesses, I am persuaded on this record that the testimony
of the latter witnesses is more complete, reliable, and
trustworthy The testimony of Armstrong, Orders,
Brown, McGlashan, and Rosinski was, at times, vague,
incomplete, and unclear. I am not unmindful of, as coun-
sel for Respondent notes in his brief, variations and omis-
sions in the testimony of employee witnesses. Neverthe-
less, on balance, I find that these cited defects are not
material and are attributable in large part to the limited
education of the employee witnesses. In short, I find that
the cited testimony of these employee witnesses repre-
sents a credible compendium of management's repeated
acts of interrogation and threats, as alleged.
Discussion
Section 8(a)(1) of the Act makes it an unfair labor
practice for an employer "to interfere with, restrain, or
coerce employees" in the exercise of their right to self-
organization. Section 8(c), in turn, provides.
The expressing of any views, argument, or opin-
ion, or the dissemination thereof . . shall not con-
stitute or be evidence of an unfair labor practice
under any of the provisions of this Act, if such ex-
pression contains no threat of reprisal or force or
promise of benefit
Read together, these provisions leave an employer free
to communicate to his employees his views respecting
unions, so long as that communication does not contain a
"threat of reprisal or force or promise of benefit." The
Supreme Court stated in NLRB v Gissel Packing Co.,
395 U.S. 575, 617, 619 (1969)•
WESTERN WASTE INDUSTRIES
Any assessment of the precise scope of employer
expression, of course, must be made in the context
of its labor relations setting Thus, an employer's
rights cannot outweigh the equal rights of the em-
ployees to associate freely, as those rights are em-
bodied in § 7 and protected by § 8(a)(1) and the
proviso to § 8(c). And any balancing of those rights
must take into account the economic dependence of
the employees on their employers, and the neces-
sary tendency of the former, because of that rela-
tionship, to pick up intended implications of the
latter that might be more readily dismissed by a
more disinterested ear. . .
. . an employer is free only to tell "what he rea-
sonably believes will be the likely economic conse-
quences of unionization that are outside his control"
and not "threats of economic reprisal to be taken
solely on his own volition" NLRB v. River Togs,
Inc., 382 F.2d 198, 202 (2d Cir. 1967).
The Supreme Court further noted in Gissel, supra at 620:
[A]n employer . . cannot be heard to complain
that he is without an adequate guide for his behav-
ior. He can easily make his views known without
engaging in "brinkmanship" when it becomes all
too easy to "overstep and tumble into the brink,"
Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (7th
Cir. 1967). At least he can avoid coercive speech
simply by avoiding conscious overstatements he has
reason to believe will mislead his employees.
In addition, it is settled law that persistent and unwar-
ranted attempts by an employer to pry into employee
protected union activities, when accompanied by threats
of reprisal for exercising such statutory rights, constitute
the kind of coercive interrogation proscribed by Section
8(a)(1) of the Act. See, e g, Rossmore House, 269 NLRB
1176 (1984), NLRB v Gladding Keystone Corp., 435 F 2d
129, 132-133 (2d Cir. 1970), and NLRB v. Novelty Prod-
ucts Co., 424 F.2d 748, 751 (2d Cir. 1970).
The credible evidence of record, as recited supra,
makes it clear here that management 's representatives re-
peatedly quizzed employees about their union sympathies
and, at the same time, threatened the employees with
loss of insurance benefits and uniforms and related repris-
als if they selected the Union as their collective-bargain-
ing agent. Thus, for example, employee Pearson credibly
related how Supervisor McGlashan pressed him at work
to disclose, "how do you stand." Pearson attempted to
avoid this interrogation by responding: "I am for what-
ever betters me." McGlashan countered that the employ-
ees would lose their insurance benefits, their uniforms,
and sustain wage cuts if they voted for the Union Em-
ployee Pearson credibly related how Supervisor Orders,
in like vein, questioned him at work about his union sym-
pathies, and how Manager Brown, in addressing the as-
sembled work force, again warned that employees would
be paying for insurance and uniforms if they voted for
the Union. I reject as incredible here management's as-
sertions that they, in effect, were making only casual or
isolated noncoercive talk with their employees and, fur-
ther, that their cited admonitions were reasonable state-
177
ments by the Employer of "what he reasonably believes
will be the likely economic consequences of unionization
that are outside his control " (Gissel, supra at 619.) On
the contrary, the credible testimony of Pearson, as well
as the credible testimony of Chapman, Anderson,
Thomas, Stanley, Green, Ingram, Blackmon, and Kim-
brough as summarized above, makes it clear that Re-
spondent, in an attempt to defeat the Union's organiza-
tional campaign, resorted to repeated and persistent acts
of coercive interrogation and threats of reprisal, in viola-
tion of Section 8(a)(1) of the Act, as alleged.
II. THE REPRESENTATION CASE
The Regional Director, as stated, consolidated with
this unfair labor practice case the Union's two objections
in the pending representation proceeding. In addition,
the Regional Director also noted, with reference to
"other conduct," that the "evidence bearing on" the Em-
ployer's unfair labor practice conduct, as found in sec-
tion I above, "was discovered . . during the course of
the concurrent unfair labor practice and objections inves-
tigation" and "may bear on the Union's objections " (See
G C. Exh 1(o).) Objection 1 pertains to the Employer's
failure to post the required notice of election at its Titus-
ville facility Objection 2 pertains to certain conduct in
and about the polling area. I note, however, before dis-
cussing these objections, that the Employer's repeated
acts of coercive interrogation accompanied by threats of
loss of benefits if the employees selected the Union as
their bargaining agent , as found in section I above, oc-
curred during the critical preelection period and, on this
record, clearly prevented the holding of a fair and free
election The additional objectionable conduct, as dis-
cussed below, assessed in the context of the Employer's
coercive conduct, provides additional reasons to require
the holding of a new election.
Objection 1• The Employer admittedly failed to post
the "notice of election" at its Titusville facility, as in-
structed by the Regional Director. This notice (C P
Exh. 1) is not simply a notice of the time and place of
the election. One-third of the printed document explains
to the employees the purpose of the election, the secret
ballot, eligibility rules, challenges, authorized observers,
and related information. In addition, one-third of this
document restates the "rights of employees" under Sec-
tion 7 of the National Labor Relations Act, explains that
"it is the responsibility of the [NLRB] to protect employ-
ees in the exercise of these rights"; and provides numer-
ous examples of conduct, including threats of loss of ben-
efits, "which interferes with the rights of employees and
may result in setting aside the election." i o
The Board majority explained in Thermalloy Corp., 233
NLRB 428 (1977)•
There were no notices, in any language or at any
time, posted in the Hanse Avenue location. The Re-
gional Director concluded that this deficiency was
10 The remaining portion of this document states the unit, hours, and
place of election, the rights of employees to leave their work stations to
vote during scheduled working hours "without further notification," and
also contains a "sample" official ballot
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cured because the Hanse Avenue foreman advised
his entire work force, in both English and Spanish,
of the election date and the voting procedures. The
Employer does not agree that such a meeting ever
took place Even if it did, it seems clear that this is
an inadequate substitute for an official Board notice
of employee rights
The Regional Director also overruled this objec-
tion because all eligible employees voted This find-
ing is contrary to the Board's decision in Kilgore
Corporation , 203 NLRB 118 (1973 ), where it held
that even a large percentage turnout is not disposi-
tive of the issue, since the official election notices
contain important information with respect to the
rights of employees under the Act.
There is no question of fault on the part of the
Employer . In this situation there was no way to
post both Spanish and English notices in both loca-
tions The Regional Director found evidence that
perhaps some , but not all, of the Hanse employees
might have seen the notices while attending a meet-
ing at the Albany Avenue building the day before
the election Other than that opportunity , the only
time all of the Hanse employees could have seen
any notice was the morning of the election just
before they voted . This case falls squarely within
the holding of Kilgore in that the posting failed to
give all the employees sufficient advance official
notice of the election and thus the laboratory condi-
tions for holding a fair election were not met.
One of the reasons for advance notice is to assure
employees of time for reflection , and an understand-
ing of the public and protected character of their
voting, or of not voting if they so choose. The inad-
equacy of the notice posting here prevented this
Accordingly , we shall reverse the Regional Direc-
tor's order for a hearing We conclude that in these
circumstances it will effectuate the policies of the
Act to direct another election.
In the instant case , the notice ' s provisions pertaining to
the rights of employees and cited examples of improper
conduct were particularly significant in view of the Em-
ployer's repeated acts of coercive interrogation and
threats, as found above Further, as will be discussed
below, Company Supervisor Irving Stokes, from the Ti-
tusville facility , entered the Cocoa voting area with one
or more Titusville employees, who had asked for the
vote-no ballot , created confusion in the polling area, and
was repeatedly directed to leave. Under all these circum-
stances, the requirement of notice posting at Titusville
was important and material here , the failure to comply
with this directive prevented the holding of a fair and
free election; and this objection is therefore sustained. i i
11 Counsel for Respondent notes in his brief that "all eligible voters
voted", Titusville voters "had occasion to visit the Cocoa facility where
the notice had been posted ", and the Company and the Union "apprised
the voters concerning information about their rights and the details of the
election process " This record is not entirely clear as to how effective the
Union was in reaching or communicating with the Titusville workers
The record is also not entirely clear as to the extent and effectiveness of
contacts or trips by Titusville employees to the Cocoa facility during the
critical preelection period Cf the testimony of Union Representatives
Objection 2 Pearson , who served as a poll -watcher for
the Union , testified that a number of employees , presum-
ably from Titusville , had entered the polling area, that
two of this group had no identification , that Pearson sug-
gested that the two persons talk to their supervisor
Irving Stokes; that Stokes thereafter entered the polling
area; and that Stokes was repeatedly asked to leave.
Pearson recalled that, when this "group " "walked in, the
first thing they wanted to know, where were the no-bal-
lots"; there was "confusion "; and one of the group said:
"I don ' t want no God -damned Union `cause I have
child-support to pay." Further, Pearson noted that, when
the Board agent told Stokes "please get out,"
he [Stokes ] was trying to give her some lip and
all this other confusion , and she asked him again,
nicely, to git She asked him a third time to git
Supervisor Irving Stokes testified that he works at Ti-
tusville; that he entered the polling area on December 2
"only at the time we were challenged . . . one of my
workers"; that he had driven one worker to the polling
area; and that he immediately left the polling area when
told to do so.
Karen Umstattd testified that she was the company ob-
server on December 2 She explained , as follows-
Q Were you in the polling area at time when a
Mr. Stokes entered the polling area?
A. Yes.
Q. How many persons were in the polling area at
that time?
A. Approximately 12.
Q. Did you say 12?
A Right
Q. How many persons did Mr . Stokes enter the
polling area with?
A. Approximately 12
Q You are certain that it was more than one')
A. More than one, yes.
Q And you can tell me where Mr. Stokes went
when he walked into the room?
A. He walked in with the men up towards the
timeclock as they were clocking out at that time,
when they came in
Q Were any statements made to Mr. Stokes that
you heard as soon as Mr. Stokes entered the room?
A. Yes.
Q. And who made those statements?
A. Albert Pearson and the woman from the gov-
ernment.
Q Are you referring to the Board agent?
A. Right. I don't know her name
Q. What did Mr. Pearson say to Mr Stokes?
A. He told him that he is not supposed to come
in there.
Q. How long after Mr Stokes entered the room
was it before Mr. Pearson said that?
A. As soon as he entered , he told him
Dennis Quebec and Robert Page with the testimony of Supervisor Irving
Stokes Stokes ' testimony is discussed further, infra
WESTERN WASTE INDUSTRIES
Q. Did Mr Pearson say anything else to Mr.
Stokes?
A. He told him twice.
Q. Twice What?
A To leave the room.
Q Did anyone else tell him to leave the room?
A. The women from the government told him
Q. Did he leave immediately?
A After she told him, he did.
Q. How many times?
A. She told him once.
Q Was there any confusion or commotion at that
time?
A Yes there was
Q Did any of those employees have ballots at
that time?
A. I don't think so
Q. Do you know?
A. I don't remember if there was anybody voting
at that time.
Q Do you recall, exactly, what the Board agent
said to Mr. Stokes?
A. She told him that he must leave the room.
Q. Did he respond?
A. He left when she told him.
Q Did he make any statement before he left?
A. He told her that he was in to verify that these
men worked for Western Waste.
I credit the testimony of Pearson as recited above. His
testimony is corroborated in significant part by the testi-
mony of Umstattd, the Company's observer. As stated
above, I find Pearson to be a credible and reliable wit-
ness. I do not credit Stokes. His testimony was at times
confusing, contradictory, incomplete, and unclear
I would not find Stokes' conduct in the polling area,
without more, to constitute a sufficient reason to recom-
mend the holding of a new election However, in the
context of management 's coercive interrogation and
threats and the failure to post the required notice at Ti-
tusville so that Stokes' workers could be adequately ap-
prised of their rights, I find and conclude that Stokes'
conduct in and about the polling area is objectionable
and provides additional reason for directing a new elec-
tion. 12
CONCLUSIONS OF LAW
1. Respondent Company is an employer engaged in
commerce as alleged.
2. The Union is a labor organization as alleged
3. Respondent Company violated Section 8(a)(1) of the
Act by coercively interrogating employees about their
protected union activities and by threatening them with
the loss of insurance, uniforms, and other benefits if they
chose the Union as their bargaining agent
4. Respondent Company also engaged in the conduct
alleged in Objections 1 and 2 in the consolidated repre-
sentation case and by its conduct as found above, pre-
12 At the hearing , the Union argued that the Employer engaged in
other improper conduct in and about the polling area It is unnecessary to
consider whether such conduct was included in the specific objections
and provides an additional basis for directing a new election
179
vented the holding of a fair and free election on Decem-
ber 2, 1983. The election should therefore be set aside
and a new election held
REMEDY
To remedy the unfair labor practices found above, Re-
spondent will be directed to cease and desist from engag-
ing in such conduct or like or related conduct and to
post the attached notice
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed13
ORDER
The Respondent, Western Waste Industries, Inc of
Florida, Cocoa, Florida, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their
protected union activities.
(b) Threatening employees with loss of insurance, uni-
forms, and other benefits if they voted for Laborers'
International Union of North America, Local 517, AFL-
CIO, or any other labor organization, as their collective-
bargaining representative.
(c) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act.
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at it facilities in Cocoa and Titusville, Florida,
copies of the attached notice marked "Appendix "14
Copies of the notice, on forms provided by the Regional
Director for Region 12, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(b) Notify the Regional Director for Region 12 in
writing within 20 days from the date of this Order what
steps Respondent has taken to comply
IT IS FURTHER ORDERED that the Union's Objections 1
and 2 are sustained and that the election conducted on
December 2, 1983, in Case 12-RC-6417 be set aside, and
a new election held.
13 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
14 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read " Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT coercively interrogate our employees
about their protected union activities.
WE WILL NOT threaten our employees with loss of in-
surance, uniforms , or other benefits if they vote for La-
borers' International Union of North America, Local
517, AFL-CIO, or any other labor organization , as their
collective-bargaining agent.
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce our employees in the exercise of
the rights guaranteed in Section 7 of the National Labor
Relations Act.
WESTERN WASTE INDUSTRIES , INC. OF
FLORIDA