DHL Express, Inc., (2010)

Docket Number:04-CA-35417
 
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DHL Express, Inc. and American Postal Workers Union, AFL–CIO

The Crossroads Group Labor Relations Consultants and American Postal Workers Union, AFL–CIO. Cases 4–CA–35417, 4–CA–35622, 4–CA–35629, 4–CA–35630, 4–CA–35685, 4–CA–35696, 4–CA–35697, and 4–RC–21327

August 27, 2010

DECISION, ORDER, AND DIRECTION OF SECOND ELECTION

By Chairman Liebman and Members Schaumber and Pearce

On June 5, 2008, Administrative Law Judge Robert A. Giannasi issued the attached decision. The Respondents filed exceptions and a supporting brief. The General Counsel filed an answering brief, to which the Respondents filed a reply. In addition, the General Counsel filed cross-exceptions and a supporting brief, and the Respondents filed a brief answering the cross-exceptions.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[1] and conclusions, to adopt the recommended Order, and to direct a second election.

We affirm the judge’s conclusions that Respondent DHL interfered with employees’ protected union handbilling activity on three occasions[2] and threatened employees on two occasions in violation of Section 8(a)(1) of the Act. We also affirm the judge’s conclusion that both Respondents violated Section 8(a)(1) when labor consultant Michael Penn threatened to sue employee Elias Sleiman for defamation based on his comments in a union newsletter article,[3] and that Respondent DHL violated Section 8(a)(3) and (1) by discriminatorily issuing Sleiman a written disciplinary warning for taking an unauthorized break,[4] reducing his work hours,[5] and giving him a negative performance appraisal.[6] Finally, we agree with the judge’s recommendation to set aside the results of the September 2007 election based on the Petitioner’s objections and the unfair labor practices that occurred during the critical preelection period. We shall therefore direct a second election.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, DHL Express, Inc., Breinigsville, Pennsylvania, and The Crossroads Group Labor Relations Consultants, San Clemente, California, their officers, agents, successors, and assigns, shall take the action set forth in the Order.

DIRECTION OF SECOND ELECTION

A second election by secret ballot shall be held among the employees in the unit found appropriate, whenever the Regional Director deems appropriate. The Regional Director shall direct and supervise the election, subject to the Board’s Rules and Regulations. Eligible to vote are those employed during the payroll period ending immediately before the date of the Notice of Second Election, including employees who did not work during the period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike that began less than 12 months before the date of the election directed herein and who retained their employee status during the eligibility period and their replacements. Those in the military services may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the payroll period, striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the date of the election directed herein, and employees engaged in an economic strike that began more than 12 months before the date of the election directed herein and who have been permanently replaced. Those eligible shall vote whether they desire to be represented for collective bargaining by American Postal Workers Union, AFL–CIO.

To ensure that all eligible voters have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses that may be used to communicate with them. Excelsior Underwear, 156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is directed that an eligibility list containing the full names and addresses of all the eligible voters must be filed by the Employer with the Regional Director within 7 days from the date of the Notice of Second Election. North Macon Health Care Facility, 315 NLRB 359 (1994). The Regional Director shall make the list available to all parties to the election. No extension of time to file the list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.

Dated, Washington, D.C. August 27, 2010

Wilma B. Liebman, Chairman

Mark Gaston Pearce, Member

(seal) National Labor Relations Board

Member Schaumber, dissenting in part.

I join my colleagues in the disposition of most of the allegations presented in this case. I disagree, however, with their decision to affirm the judge’s conclusions that Respondent DHL unlawfully surveilled employees’ protected handbilling activity on July 30 in violation of Section 8(a)(1), and that Respondents DHL and Crossroads violated Section 8(a)(1) when labor consultant Michael Penn threatened to sue employee Elias Sleiman for defamation as a result of his remarks in a union newsletter. In addition, I disagree with my colleagues’ decision to set aside the results of the election and direct a new election.

i. alleged surveillance of employee handbillers on july 30

On July 30, a group of the Respondent’s off-duty employees distributed handbills on the sidewalk outside the Respondent’s facility. In addition, nonemployee union officials parked their car off of the public road along the edge of the Respondent’s property, from which location they communicated with the handbilling employees. Upon discovering the nonemployee union officials’ presence, and believing them to be on the Respondent’s property, the Respondent’s operations manager, Pasquale Scaramuzzini, directed the security guards to call the police.1

While the employees were handbilling, several of the Respondent’s security guards approached the sidewalk and stood within several feet of the handbillers. When the police arrived to speak to the nonemployee union officials, all but one of the security guards left the sidewalk area and walked over to the union officials’ car. One of the security guards remained positioned among the handbilling employees for the duration of time in which the police were present at the Respondent’s facility (approximately 20–30 minutes). When the police departed, the security guard who was positioned among the handbillers, as well as the other guards, went inside.

Contrary to my colleagues, I cannot agree with the judge’s conclusion that the presence of the Respondent’s security guards among the employee handbillers constituted unlawful surveillance of the employees’ protected union activities. As an initial matter, I note that the Respondent’s security guards did not direct the employees to cease handbilling, or otherwise attempt to interfere with their handbilling efforts. Further, it was not unusual for the guards to be present in the sidewalk area in which the employees were handbilling. Indeed, the Respondent’s security guards were responsible for, inter alia, patrolling the area encompassing the parking lot and the sidewalk that connects the parking lot to the facility entrance. Moreover, on the date in question, as the judge found, a management official specifically directed the security officers to call the police to investigate the presence of a group of nonemployees who were communicating with the handbillers from the edge of the Respondent’s property. In light of that directive, it was certainly reasonable for the security guards to temporarily position themselves in a location that would enable them to observe and assess the situation until it was resolved. Moreover, the guards went back inside the building as soon as the police left the Respondent’s premises, confirming that the guards were concerned only with the fulfillment of their assigned security duties. Under these circumstances, I conclude that the security guards’ conduct did not constitute unlawful surveillance of the employees’ union activities.

ii. alleged threat to sue sleiman for defamation

During the course of the Union’s organizational drive, Respondent DHL engaged the services of Michael Penn, a partner with Respondent Crossroads Group Labor Relations Consultants, and an admitted agent of the Respondent. In August 2007, the Respondent held several mandatory meetings at which Penn spoke to employees. During the first such meeting, held on August 14 and 15,2 Penn described his background, including his tenure as a union organizer. In that regard, according to his own testimony, Penn told the employees that one of the reasons that he had abandoned his role as a union organizer was that he felt that he had only helped employees in 3 out of 10 union campaigns.3 In response to Penn’s remarks, an employee named Millie stood up and shouted, “You’re a thief, you stole my money,” and called Penn a thief and a liar.

Shortly after Penn’s above-described meeting with the employees, employee Elias Sleiman wrote an article that appeared in the Union’s August 20 newsletter. The article, which described Penn’s meeting with the employees, stated, inter alia:

This union buster started lying in the first...

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