Downtown Bid Services Corporation

National Labor Relations Board - Administrative Judge Opinions

Mar 31, 2010

05-RC-016330 (N.L.R.B. Mar. 31, 2010)

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Washington, DC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DOWNTOWN BID SERVICES CORPORATION
Employer
and Case 5-RC-16330
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO,
DISTRICT LODGE 98
Petitioner
Patrick J. Cullen, Esq., and Rachael Simon, Esq., for the Regional Director.
Anthony J. Marcavage, Esq., and Bernard P. Jeweler, Esq., for the Employer.
William H. Haller, Esq., for the Petitioner.
ADMINISTRATIVE LAW JUDGE’S REPORT AND
RECOMMENDATIONS ON OBJECTIONS
BRUCE D. ROSENSTEIN, Administrative Law Judge. Pursuant to a petition filed on
July 6, 20091 and a Stipulated Election Agreement entered into by the parties and approved on
July 22, an election by secret ballot was conducted under the direction and supervision of the
Regional Director, Region 5 of the National Labor Relations Board (the Board or NLRB) on July
30 and 31, in the following unit of employees.
INCLUDED: All full time and regular part time hospitality/safety workers and
maintenance workers employed by the Employer in Washington, D.C.
EXCLUDED: All office clerical employees, professional employees, managers,
guards and supervisors as defined in the Act.
The tally of ballots, which was made available to the parties at the conclusion of the
election showed the following results:
Approximate number of eligible voters 117
Void ballots 1
Votes cast for Petitioner 56
Votes cast against participating labor organization 51

1 All dates are in 2009 unless otherwise indicated.
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Valid votes counted 107
Challenged Ballots 1
Valid votes counted plus challenged ballots 108
A majority of the valid votes counted have been cast for the Petitioner.
On August 7, the Employer filed timely objections to conduct affecting the results of the
election. On February 18, 2010, the Regional Director issued a Report on Objections and
Notice of Hearing finding that substantial and material issues of fact have been raised that can
best be resolved by record testimony (Bd Exh. 1(g)). Accordingly, the Regional Director
determined that a hearing should be held regarding the issues raised by the Employer.
I conducted a hearing on the below noted objections in Washington D.C. on March 4 and
5, 2010.2 On the entire record, I make the following recommendations.3
BACKGROUND
District Lodge 98 Business Representative Roosevelt Littlejohn testified that he was
contacted in or around March or April 2009 by Jennings Brown, a machine operator at the
Employer. Brown was interested in organizing the employees and was seeking a labor
organization that would be a good fit. Littlejohn and Brown held several meetings and ultimately
Brown determined that the Petitioner would be an excellent choice to represent the employees
for collective-bargaining purposes. Littlejohn encouraged Brown to seek out other interested
employees and he would arrange a number of meetings wherein the employees could ask
Littlejohn questions and seek information about organizing the Employer. Littlejohn treated
Brown and several other employees to lunch when meetings occurred between them but other
then this benefit, the employees received no other emoluments for agreeing to assist the
Petitioner in organizing the Employer. Indeed, all Union literature, campaign propaganda and
flyers were drafted by Littlejohn for dissemination by Union paid organizers or volunteer
members of the in-plant supporters of which Brown was a member. Likewise, all meetings to
discuss the Union at off-site locations were arranged and chaired by Littlejohn.
Littlejohn instructed members of the in-plant supporters committee, including Brown, on
the framework of organizing employees but none of these individuals participated in any specific
training on how to solicit union authorization cards from co-workers. After the cards were
executed by the employees, they were given to Llittlejohn for safekeeping in preparation for the
filing of the subject representation petition.
Littlejohn credibly testified that he never received any reports from the Employer or its
employees that authorization cards were being solicited in less then a polite manner nor was
Llittlejohn aware that some members of the in-plant supporters committee told employees that if
they did not sign an authorization card or vote for the Union they could be terminated by the
Union. According to Littlejohn, if such conduct did occur, it was not authorized or condoned by
the Petitioner.
By letter dated June 16, Littlejohn informed the Employer that its employees had

2 Post hearing briefs filed by the Petitioner and the Employer were duly considered.
3 The undersigned will consider the alleged interference that occurred during the critical
period, which begins on and includes the date of the filing of the petition and extends through
the election.
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selected the Petitioner as their collective-bargaining representative (Emp Exh. 6).
On July 6, the Petitioner filed a representation petition with the Board.
On July 30 and 31, an election was conducted under the supervision of Region 5
between the hours of 5:30 a.m. to 8:00 a.m. and 9:00 a.m. to 12:00 p.m. (Bd Exh. 1(d)). Brown
served as the Petitioner’s observer at all four sessions during the two day election period.
THE OBJECTIONS
The Employer filed Objections 1 through 5 alleging in pertinent part that the Petitioner
threatened its employees by informing them that they would lose their jobs if they did not
support the Petitioner, that the Petitioner harassed and intimidated its employees, that the
Petitioner’s observer used his cell phone at the polling location during election hours and named
the Employer’s observer to an unidentified party to whom he was speaking, that the Petitioner’s
observer addressed and embraced various voters during election hours, and the Petitioner
interfered with the laboratory conditions necessary for a secret ballot election when it chose
Brown as its observer, the party principally involved in coercing, intimidating and threatening its
employees.
Objection 1
The Employer primarily alleges that Brown and several members of the in-plant
supporters’ committee, both before and during the critical period, informed employees that if
they did not sign an authorization card for the Union, attend its meetings or vote for union
representation, the Petitioner would have them fired.
Facts
Employee Ethel Frye testified that Brown, who she has known for approximately six
years while serving on the same work team, told her on a number of occasions prior to the
election that the Union would have her fired if she did not sign with the Union, attend meetings
or vote for the Union. Frye identified Brown as the leader of the Union based on her belief that
he wanted a union at the Employer and was active in talking up the Union to employees. Frye
agreed, however, that Brown is a full-time employee of the Employer and is not employed by the
Petitioner. Frye also testified that co-worker Fenton Chester told her in front of other employees
at lunchtime in Franklin Park in Washington, D.C., that she would lose her job if she did not sign
with the Union or vote for the Union. Frye stated, however, that prior to the scheduled election
she learned that neither Brown nor the Union could get her fired.
Eileen Andary, Director of Administration for the Employer, testified that after the election
was completed the Employer sought volunteers to provide information to support allegations
lodged by employees that union supporters engaged in acts of harassment and intimidation
during the election campaign. The employees who agreed to participate were provided
safeguards that no reprisals would be taken against them and their participation was strictly
voluntary. One of the employees who provided information to the Employer was Frye. On July
31, Frye met with Andary and provided information about her interaction with Brown and other
supporters of the Union concerning events that occurred prior to the election. A second meeting
occurred in early August 2009, where Andary took notes and apprised Frye that she would
prepare a statement that Frye could review and make any changes or corrections before it
would be submitted to the Board in the event the Employer decided to file objections to the
conduct of the election. Andary testified that if an employee requested a copy of their signed
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statement, it was immediately provided.
On August 13, Frye was getting ready to clock out but was requested to return to the
back office in order to meet with Andary. Frye was provided a typed statement summarizing
their prior discussions that Andary requested that she sign after having an opportunity to review
it. Frye was in a hurry to leave work and did not read the statement before she signed it (Emp
Exh. 1). Andary asked Frye if she wanted a copy of the statement and Frye said no.
Frye, while on her way home, thought about why she signed something without reading
it. Accordingly, Frye telephoned Andary and requested that she be provided a copy of her
statement. Frye, on or about August 17, obtained a copy of her statement and after carefully
reviewing it, telephoned Littlejohn and informed him that there were some things in the
statement that were not true. After discussing the portions of the August 13 statement that were
not accurate, Littlejohn suggested that Frye prepare another declaration that clarified the prior
statement. Littlejohn had someone in his office prepare a revised statement that Frye signed on
August 24 (Pet Exh. 2).
On August 31, Frye gave an affidavit to the Board in the course of the Region’s
investigation of the Objections to the conduct of the election filed by the Employer that
summarized events regarding the threats made by Brown and other in-plant supporters, the
allegations of harassment, and the execution of the prior statements (Pet Exh. 1).
Employees Norma Canales and Maria Caravate testified that on July 28, at the Martin
Luther King Library in Washington D.C., co-worker and Union supporter Dagoberto Arcia told
them that if they did not vote for the Union, the Union would put them out on the street, meaning
that the Union would have them fired.
Administrative Specialist, Jalal Chaoui, testified that as a non-supervisory employee he
has gained the trust of many of the employees and often talks with them about problems or
concerns they may have at the Employer. He noted that Frye came to him once in June and
twice in July 2009 to express her concerns that she was being harassed by Brown about the
Union and that she was in fear of her job. Chaoui also noted that employees Ronald Calhoun
and Raymond Dantzler spoke with him in July 2009 to express their concerns about their jobs
and the continued harassment directed at them by Brown and other Union supporters.
Discussion
The Board applies an objective test in evaluating party conduct during an elections
critical period, i.e. whether the conduct has the “tendency to interfere with the employees’
freedom of choice” and “could well have affected the outcome of the election.” Cambridge Tool
& Mfg. Co., 316 NLRB 716 (1995).
The Board, in Janler Plastic Mold Corporation, 186 NLRB 540 (1970), addressed a
similar allegation that the petitioner threatened employees that they would lose their jobs if they
did not vote for the petitioner, and held that employees could reasonably be expected to
evaluate these remarks as noncoercive and not as threats.4 Likewise, the Board followed the

4 The Board stated: nor do we consider that a particular employee’s subjective
“understanding” of these remarks is competent evidence to prove a coercive or objectionable
effect, since in our opinion the remarks do not reasonably have that tendency. In the first place,
the vote was to be by secret ballot, under conditions safeguarded by the Board, and no
Continued
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Janler holding in Underwriters Laboratories, Inc., 323 NLRB 300 (1997).
Applying these principles to the subject case, I find that the employees herein could
reasonably be expected to evaluate the remarks as noncoercive and not as threats. Indeed,
Frye testified that she learned prior to the election that neither Brown nor the Union could have
her fired. Likewise, Director of Operations Everett Scruggs, Andary, and Chaoui informed those
employees that came to them prior to the election to express fear for their jobs, that the Union
could not have them fired.
Under these circumstances, I recommend that Objection 1 be overruled.
Objection 2
The Employer alleges that during the pre-election period, a number of employees
including Brown constantly harassed fellow co-workers about signing a union card and
attending union meetings. In addition, it was reported that Brown regularly used profanity when
addressing co-workers if they did not immediately sign a union authorization card and routinely
used profanity in front of employees when discussing issues related to the upcoming election.
In one instance, the Employer asserts that several employees called a fellow co-worker stupid
and a “stupid nigger” for not supporting the Union. Scruggs reported that about a week before
the election he saw a hand written message on one of the Employer’s campaign posters placed
adjacent to the men’s locker room that states: “fuck you BID, you all going down, hopefully to
hell, with your cocksucking niggers, spics, and white trash.”
Facts
Frye testified that during the authorization card signing period (prior to June 16-Emp
Exh. 6), she was constantly harassed by Brown and other co-workers that supported the
Petitioner about signing an authorization card and attending Union meetings, however, Frye
denied that she heard Brown use profanity in the workplace. She further testified that fellow
employee Lawrence Caraway told her in the presence of other employees during lunchtime in
Franklin Park in Washington, DC that she had to sign with the Petitioner.
Calhoun testified that co-workers and Union supporters Jerome Coleman and Earl
Garnett, male African Americans, harassed him on a regular basis about signing an
authorization card and voting for the Union. In fact, these individuals called him “stupid” for not
supporting the Union and Coleman told him that he was “a stupid nigger” for not supporting the
Union.
Scruggs testified that about a week before the election he saw a hand written message
on one of the laminated campaign posters placed by the Employer in a public area adjacent to
the men’s locker room (Emp Exh. 3). The handwritten message states: “fuck you BID, you all
going down, hopefully to hell, with your cocksucking niggers, spics, and white trash.”
Lastly, Scruggs testified that several days before the election, a manager brought
employee Keith Dorsey to his office who wanted to speak with him. The employee was shaking
_________________________
evidence was offered to show that any employee had reason to believe that petitioner could
ascertain how he voted. In the second place, no evidence was offered to show that any
employee had reason to believe that the Employer favored the petitioner and on request was
disposed to discharge any employees for voting against the petitioner.
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and tearful and kept repeating, will I lose my job because of the Union thing. Scruggs assured
the employee that he would not lose his job because of the Union.
Discussion
The record evidence establishes that a number of employees, particularly the in-plant
supporter’s committee members, were particularly aggressive during the organizing drive
undertaken at the Employer. Indeed, some of these individuals were especially persistent in
their efforts to make sure employees signed an authorization card or voted for union
representation.
It is apparent from the testimony presented during the course of the hearing, that none of
the individuals who were members of the in-plant supporters committee were paid employees of
the Petitioner, received remuneration or other benefits for their efforts in attempting to organize
their fellow co-workers or were singled out by the Petitioner for special training on how to solicit
authorization cards from employees.5 Indeed, Littlejohn credibly testified that he never received
any reports from the Employer or employees that members of the in-plant supporters committee
used strong arm tactics in attempting to organize employees or threatened employees that the
Union could have them fired if they refused to sign an authorization card or vote for union
representation. In fact, Littlejohn openly rejected such conduct and testified that it was neither
authorized nor condoned by the Petitioner. Under these circumstances, the Employer’s
argument that the in-plant supporters of the Petitioner are union agents is rejected. Cornell
Forge Company, 339 NLRB 733 (2003).6
With respect to the racial comments made by two African American employees to
Calhoun, while such comments are inappropriate and should not be tolerated during an election
campaign, Calhoun noted that as a male African American employee, such discussions and
comments are not uncommon at the Employer. While he was disappointed that such comments
were made, it did not dissuade him from participating in the election process. Moreover, these
comments appear to be isolated as it concerns Calhoun. Likewise, it is noted that the Employer
could not identify any individual that was responsible for the inappropriate remarks found on its
laminated campaign poster adjacent to the men’s locker room7 nor was there any other
evidence presented in the hearing regarding racial overtones in the election campaign.

5 See Corner Furniture Discount Center, Inc., 339 NLRB 1122 (2003) and cases cited
therein that enthusiastic employee activist who solicited and obtained signatures on
authorization cards and served as an election observer was not a general agent of the union
under the principles of actual or apparent authority, where as here, the union had its own
admitted agents involved in the campaign.
6 The Employer’s reliance on the Board’s decision in Service Employees International Union
Local 87 (GMG Janitorial, Inc.) 322 NLRB 402 (1996) is misplaced. The decision in this unfair
labor practice case that an individual’s statements to employees that if they did not sign a union
card they would lose their jobs was primarily based on the finding that the individual that made
the statement was an “Employer Supervisor” within the meaning of Section 2 (11) of the Act.
7 In El Fenix Corporation, 234 NLRB 1212, 1213 (1978), the Board held that a single ethnic
slur by an employee nonagent was not considered objectionable, and in Benjamin Coal
Company, 294 NLRB 572, the Board found that the union was not responsible for the racial and
ethnic statements of some of its in-plant committee members when the union did not sanction or
condone such statements. Indeed, no evidence was presented by the Employer in the subject
case that the in-plant supporters’ committee had either actual or apparent authority from the
Union to make racial statements to co-workers.
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Additionally, the record establishes that it was not uncommon for employees to use profanity
with each other in the workplace.
Lastly, while it is unfortunate that the organizing campaign caused certain individuals to
become emotional and upset, the Employer assured those employees who were concerned
about their jobs, that the Petitioner had no authority to terminate employees, as that
responsibility solely rested with the Employer.
For all of the above reasons, I find that the Employer has not conclusively established
the underpinnings in Objection 2, and therefore, I recommend that it be overruled.
Objection 3
The Employer alleges that on July 30, when Brown served as the Petitioner’s election
observer, the Board Agent granted his request to make a telephone call to his doctor. After
Brown made the telephone call, he took a second call from an unknown person, and told this
individual the full name of the Employer’s election observer.
Facts
Michael Marshall, a hospitality and safety worker of five years, served as the election
observer for the Employer on July 30. Marshall testified that the Board Agent gave permission
to Petitioner’s election observer Brown to make a telephone call to his doctor’s office during a
break in the election proceedings when no employees were in the voting area. Brown left a
voice mail message for the doctor and then took an incoming telephone call from an unidentified
individual while the parties were still on break. Marshall overheard Brown inform the
unidentified individual on the telephone that he was the Employer’s election observer. Marshall
immediately protested to Brown about mentioning his name but he did not raise the issue with
the Board Agent, and testified that he could not be certain whether the Board Agent heard
Brown’s remarks.
Discussion
The evidence discloses that the identification of the Employer’s observer to the
unidentified caller occurred during a break in the election proceedings without the presence of
any voters, and that the doors to the polling area were closed at the time the telephone call was
received. Moreover, once the employees appeared in the voting area, they could readily
identify Marshall as an observer for the Employer since it was common knowledge that Brown
was a leading proponent in the organizational drive to elect the Petitioner as the employee’s
exclusive collective-bargaining representative. Lastly, revealing the name of the Employer’s
observer had no impact on the election nor did it prevent any employees who wanted to
participate in the election process from casting a ballot.
Under these circumstances, I recommend that Objection 3 be overruled.
Objection 4
The Employer contends that on July 30, while Brown served as an observer for the
Petitioner, he greeted prospective voters warmly, waved and laughed at them, and in one
instance attempted to hug an employee until admonished by the Board Agent. Additionally, the
Employer argues that one employee became so upset when he entered the polling area and
observed Brown as an observer that he left and did not vote.
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Facts
Rene Peralta, a machine operator, served as an election observer for the Employer on
July 30. He testified that Brown, while acting as the observer for the Petitioner, tried to get out
of his seat and embrace a prospective voter as she approached the table where they were
sitting. The Board Agent informed Brown that he could not engage in that type of conduct, and
Brown returned to his seat before completing the act of embracing the employee.
Peralta further testified that during the course of the election session Brown would make
facial gestures at the voters but he did not speak with them. He also would look away from
some of the voters as they approached the table to obtain a ballot. Peralta noted that one of the
employees who entered the voting area appeared to freeze when he observed Brown sitting at
the table. The employee then left the voting area without casting a ballot.

Discussion
The Board in Sir Francis Drake Hotel, 330 NLRB 638 (2000), held that the contacts of
the Petitioner’s observer with employees in the polling area did not constitute objectionable
conduct because the conversations were brief, lasting from a few seconds to 1 minute, and the
content of the conversations were innocuous. On the other hand, the Board in Brink’s
Incorporated, 331 NLRB 46 (2000), found objectionable conduct when the union observer acting
as an agent of the Union at the time of his misconduct,8 acted contrary to the instructions of the
Board Agent who conducted the election and directly told employees how to vote. Additionally,
the Union observer gave the “thumbs up” signal to a number of voters and other employees
were told what the observer stated about how to vote.
Applying the above principles to the facts herein, I do not find that Brown engaged in
conduct that interfered with the laboratory conditions of the election. In this regard, Brown
followed the instructions of the Board agent who conducted the election and returned to his seat
at the election table without embracing the prospective voter. Additionally, although Brown
made facial gestures at prospective voters and often turned away when they approached the
voting table, he did not engage in any conversations with them. Indeed, these employees were
not prevented from voting despite Brown’s actions. As it concerns the one voter who froze upon
observing Brown and left the voting area without casting a ballot, no evidence was presented
that Brown threatened the employee in any way or engaged in any conversations with him.
Moreover, even if the employee had cast a ballot, it would not have impacted the results of the
election.
For all of these reasons, I conclude that the Employer has not sustained the
underpinnings of Objection 4, and recommend that it be overruled.
Objection 5
The Employer asserts that the presence of Brown sitting in the voting area as an
observer for the Petitioner on July 30, intimidated prospective voters because of his leadership

8 See Dubovsky & Sons, Inc., 324 NLRB 1068 (1987). In this decision the Board did not find
the observer engaged in objectionable conduct, since he did not violate the principles of
Milchem, Inc.,170 NLRB 362 (1968), regarding communications between an observer and
voters waiting in line to vote.
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role in convincing employees to support the Petitioner and his continued pressure and
harassment of employees throughout the election campaign.
Facts
Vivian Morgan, a hospitality worker and a five year employee, testified that when she
appeared at the polls on July 30 to cast her vote, Brown gave her a severe look which caused
her to become upset. While Morgan was not prevented from voting in the election, she
expressed her opinion that an observer should be someone who was neutral and opined that
Brown has a reputation as a bully and should not have been serving as the Petitioner’s election
observer. Morgan noted that on occasions she loaned money to Brown but when he ceased
paying her back Morgan stopped loaning him money. Morgan noted that after she stopped
loaning money to Brown, the relationship changed and Brown would ignore her. Morgan
expressed her opinion that Brown was the leader of the Union because he passed out flyers to
employees and encouraged employees to attend union meetings.
Discussion
The Board held in Liquid Transporters, Inc., 336 NLRB 420 (2001), that objections to
particular persons acting as observers must be made at the preelection conference or they are
waived.
The evidence establishes that although Brown smirked at Morgan, which caused her to
become upset, she overcame her uneasiness and voted in the election. Morgan acknowledged
that she never officially objected to the selection of Morgan as an observer for the Petitioner,
and admitted that co-worker Brown is not an employee of the Union. Lastly, Morgan testified
upon learning that Brown was the Employer’s designated observer at the election, that she did
not find his presence inappropriate.
For all of these reasons, I recommend that Objection 5 be overruled.
Conclusions and Recommendations to the Board
Based on my findings and conclusions above, I recommend that the Board overrule the
Employer’s objections in their entirety and issue a Certification of Representative to the
Petitioner.9
Dated, Washington, D.C. March 31, 2010
____________________
Bruce D. Rosenstein
Administrative Law Judge

9 Pursuant to the provisions of Section 102.69 of the Board’s Rules and Regulations, Series
8, as amended, within 14 days from the date of issuance of this Recommended Decision, either
party may file with the Board in Washington D.C. an original and eight copies of exceptions
thereto. Exceptions must be received by the Board in Washington by April 14, 2010.
Immediately upon the filing of such exceptions, the party filing same shall serve a copy upon the
other parties and shall file a copy with the Regional Director. If no exceptions are filed thereto,
the Board may adopt this Recommended Decision.
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