Downtown D.C. Business Improvement District (SAM)

National Labor Relations Board - Unpublished Board Decisions

Dec 23, 2010

05-RC-016330 (N.L.R.B. Dec. 23, 2010)

NOT INCLUDED
IN BOUND VOLUMES LBP
Washington, DC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DOWNTOWN BID SERVICES CORPORATION
Employer
and Case 5-RC-16330
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO,
DISTRICT LODGE 98
Petitioner
DECISION AND CERTIFICATION OF REPRESENTATIVE
The National Labor Relations Board, by a three-member panel, has considered
objections to an election held July 30 and 31, 2009, and the administrative law judge’s
report recommending disposition of them.1 The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots shows 56 ballots for and 51 ballots
against the Petitioner, with 1 challenged ballot, an insufficient number to affect the
results.
The Board has reviewed the record in light of the exceptions and briefs, has
adopted the judge’s findings and recommendations, and finds that a certification of
representative should be issued.

1 The judge was sitting as a hearing officer in this representation proceeding.
2
We adopt the judge’s recommendation to overrule the Employer’s Objections 3,
4, and 5, for the reasons he stated. We also adopt the judge’s recommendation to
overrule the Employer’s Objections 1 and 2, as further discussed below.
In Objection 1, the Employer alleged that prounion employees, particularly
members of an in-plant organizing committee, threatened other employees that the
Union would have non-supporters fired. In Objection 2, the Employer alleged that these
prounion employees also engaged in harassment and intimidation of eligible voters.
Preliminarily, there is the question of the Union's responsibility for those
employees' conduct. In analyzing Objection 2, the judge rejected the Employer’s
contention that members of the in-plant committee acted as agents of the Petitioner.
We agree for the reasons he states. In exceptions, the Employer submits that the
prounion employees were the Petitioner’s special agents citing, inter alia, Davlan
Engineering, Inc., 283 NLRB 803, 804 (1987), which held that “employees who solicit
authorization cards should be deemed special agents of the union for the limited
purpose of assessing the impact of statements about union fee waivers or other
purported union policies that they make in the course of soliciting.” We find no merit in
this contention because the prounion employees’ statements at issue cannot
reasonably be viewed as involving a “policy” of the Petitioner. See Shawnee Manor,
321 NLRB 1320 (1996) (alleged threats of violence, even when made in the course of
card solicitation, cannot be construed by any reasonable person as representing
‘‘purported union policies”). Further, at least as to the threats of job loss alleged in
Objection 1, the record does not show that the prounion employees made the alleged
statements when they were soliciting authorization cards. We therefore agree that
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these prounion employees were not agents of the Petitioner.. Having so found, we
must apply the Board’s third-party standard in considering the conduct at issue in the
Employer’s Objections 1 and 2. 2 The Board will set aside an election on the basis of
third party conduct only if the conduct is so aggravated that it creates a general
atmosphere of fear and reprisal rendering a fair election impossible. See e.g., Corner
Furniture Discount Center, Inc., 339 NLRB 1122, 1123 (2003). Applying this standard,
we find that the Employer failed to meet its burden of proving that the election should be
set aside. Accordingly, we overrule the Employer’s Objections 1 and 2 and certify the
Petitioner.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have been cast for International
Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 98, and that
it is the exclusive collective-bargaining representative of the employees in the following
appropriate unit:
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.

2 Although the judge found that the prounion employees were not the
Petitioner’s agents, he assessed the threats of job loss at issue in Objection 1 under a
party conduct standard. Citing Janler Plastic Mold Corporation, 186 NLRB 540 (1970)
and Underwriters Laboratories, Inc., 323 NLRB 300 (1997), enfd. 147 F.3d 1048 (9th Cir.
1998), the judge found that the threats of job loss would not be objectionable even if
made by union agents. We agree but, in any event, the employees who made the
threats here were not union agents, and the alleged objectionable nature of their actions
must be evaluated under the third-party conduct standard.
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Dated, Washington, D.C. , December 23, 2010.
____________________________
Wilma B. Liebman Chairman
____________________________
Craig Becker Member
____________________________
Mark Gaston Pearce Member
(SEAL) NATIONAL LABOR RELATIONS BOARD