Picoma Industries, Inc. And United Rubber, Cork, Linoleum

National Labor Relations Board - Board Decisions

Sep 12, 1989

296 N.L.R.B. 498 (N.L.R.B. 1989)

498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Picoma Industries, Inc. and United Rubber, Cork,
Linoleum and Plastic Workers of America,
AFL-CIO, CLC, Petitioner . Case 16-RC-8982
September 12, 1989
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
The National Labor Relations Board , by a three-
member panel, has considered objections to an
election held October 23, 1987,1 and the hearing
officer's report recommending disposition of them.
The election was conducted pursuant to a Stipulat-
ed Election Agreement . The tally of ballots shows
68 for and 66 against the Petitioner , with 1 chal-
lenged ballot , an insufficient number to affect the
results.
The Board has reviewed the record in light of
the exceptions and brief, and has decided to adopt
the hearing officer's findings2 and recommenda-
tions only to the extent consistent with this deci-
sion. The hearing officer recommended that the
Employer 's objections be overruled in their entire-
ty. The Employer excepts to the hearing officer's
recommendation on the grounds that he misapplied
the relevant standard for evaluating the threats
made by union supporters toward known or sus-
pected antiunion employees and failed to consider
the cumulative credited evidence in determining
the effect of third-party preelection misconduct on
the election results . We find merit in the Employ-
er's exceptions.
The relevant facts are as follows.3 About 1 week
prior to the Board election , as they stood in line to
clock out from their 7 a.m. to 3 p.m. shift, employ-
ee David Beard4 approached fellow employee
Marie Holmes to ask if she knew who had reported
to the foreman that Beard was harassing employees
in the boring mill about the Union. Beard then
stated "I'll just blow up Picoma and resolve it like
that." Beard said that he was "just joking ." Holmes
testified he did not look or act like he was joking
when he made the statement.
In another incident that occurred 2 or 3 days
prior to the election , Holmes overheard Gloria
Mayton , a union supporter , comment to a friend as
' Unless otherwise indicated, all dates herein are 1987
z The Employer has excepted to some of the hearing officer's credibil-
ity findings The Board 's established policy is not to overrule a hearing
officer's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect . Stretch-Tex Ca,
118 NLRB 1359, 1361 (1957) We find no basis for reversing the findings.
8 The narrative facts are based on the testimony credited by the hear-
ing officer
4 David Beard's nickname is "Animal."
they left the ladies' restroom that, if the Union
came in , those persons who tried to cross the
picket line could get their heads blown off and
their tires slashed.5
About 1 week prior to the election, union sup-
porter Bobby Dorsey approached employees
Shonna Brown and Holmes near their work station
and said that "if the Union doesn 't get in, some-
one's asses are in trouble ." Holmes became upset
after she asked Dorsey if he was threatening her
and he refused to answer. Holmes reported the in-
cident to her foreman.
On October 14, immediately following an antiun-
ion presentation by Linda Northcutt, employee
Randy Gerrald was standing in line to clock out
when he overheard Leonard Neal and Norris Har-
tefields talking in loud and angry voices about
Northcutt's presentation. Neal said he would "blow
her [expletive deleted] car up," and then he held
up his clenched fist and shouted "Union, union,
union." Neal also said he would like to beat up
Northcutt and that she better not walk past the
timeclock. Hartefields said that he too would like
to beat up Northcutt. Gerrald stated that approxi-
mately 20 other employees were in line with him
and that they remained quiet and listened to what
Neal and Hartefields had to say.6 Gerrald did not
warn Northcutt about the threats made by Neal
and Hartefields, but he did report the incident to
Foreman John Olszeski.
About 2 or 3 days before the election, employee
Linda Fricks and union organizer Brooksie Holden
were in the lunchroom talking about the possibility
of a strike and about what could happen to people
who cross the picket line.? Holden told Fricks
"there would probably be trouble if anybody
crossed the picket line."
On these facts the hearing officer found, and we
agree, that the evidence shows that the alleged ob-
jectionable conduct is not attributable to the Peti-
tioner and must be considered under the standard
for third party conduct set forth in Westwood Hori-
zons Hotel, 270 NLRB 802, 803 (1984)-that is
"whether the misconduct was so aggravated as to
create a general atmosphere of fear and reprisal
rendering a free election impossible ." However, we
disagree with the hearing officer's application of
S In an incident that occurred on September 18, Mayton punched
Holmes in the arm as they stood in line to clock in The hearing officer
found that there was no evidence that the incident was motivated by the
Petitioner's organizational campaign or that the Petitioner authorized the
conduct He further found that the punch was too remote in time to have
had an effect on the results of the October 23 election.
6 The hearing officer credited Gerrald's testimony . However , he failed
to mention Gerrald 's assertion that Neal and Hartefields ' comments were
made in the presence of approximately 20 employees
T Fricks and Holden are cousins.
296 NLRB No. 69
PICOMA INDUSTRIES
that standard to the evidence in this case . We find
that in concluding there was no objectionable con-
duct , the hearing officer misconstrued the West-
wood Horizons Hotel standard , failed to consider
critical aspects of credited testimony , and failed to
properly consider the cumulative evidence.
In applying the Westwood Horizons Hotel criteria,
the hearing officer erred by emphasizing the reac-
tions of employees to the threats . Thus, in evaluat-
ing the threats directed to Holmes, the hearing offi-
cer relied orr her testimony that her vote in the
election was not affected by anything that hap-
pened to her in the election campaign . Similarly,
he discounted Holden 's remarks to Fricks on the
ground that Fricks testified she did not feel threat-
ened by them, and he noted that Gerrald stated
that he did not vote in the election because he was
ill and not because of any threats made by Neal
and Hartefields . Finally, in rejecting the overall al-
legation of misconduct in objection 3, he expressly
noted that of the 16 employees who testified at the
hearing , all voted in the election except one who
was ill on the day of the election. None of the wit-
nesses testified that their choice was affected by
election misconduct , and 12 witnesses specifically
testified that they voted freely.
The hearing officer's analysis ignores well-estab-
lished Board precedent that "the subjective reac-
tions of employees are irrelevant to the question of
whether there was, in fact , objectionable conduct."
Emerson Electric Co., 247 NLRB 1365, 1370 (1980),
enfd . 649 F.2d 589 (8th Cir . 1981). Rather , the test
is based on an objective standard. In this regard,
the hearing officer misconstrued the Westwood Ho-
rizons Hotel factor of "whether it is likely that the
employees acted in fear of his [a third party's] ca-
pability of carrying out the threat ." 270 NLRB at
803. In setting forth this factor , the Board did not
validate the use of subjective evidence . Rather, the
Board 's focus was on "the reasonableness of em-
ployee fears" as reflected by objective facts. See
Electra Food Machinery, 279 NLRB 279, 280 fn. 13
(1986).
The hearing officer further erred in failing to
consider significant credited testimony . He general-
ly credited the testimony of Randy Gerrald who
stated that on October 14 while he was standing in
line to clock out, he heard employees Neal and
Hartefields talking about employee Northcutt who
had earlier made an antiunion presentation . Gerrald
testified that these employees threatened to beat up
Northcutt, and blow up her car . Gerrald did not
tell Northcutt or other employees of these threats.
The hearing officer found that the threats were
"immaterial and had no bearing upon the election"
in view of the fact that they were not disseminated.
499
In making this finding , the hearing officer ignored
Gerrald 's testimony that he was 1 of more than 20
employees standing in line to clock out when the
incident occurred and that the other employees in
line remained "quiet" and listened to what Neal
and Hartefields had to say . Thus, contrary to the
hearing officer 's conclusion , the threats were made
in the presence of at least 20 employees in a unit of
some 140 employees and cannot be viewed as im-
material.
Finally , the hearing officer failed to properly
consider the cumulative effect of the credited testi-
mony . He either discussed the threats separately
(or as in the case of Holmes, a group of threats
made to one person is discussed separately from
evidence of other misconduct) or made the improp-
er general conclusion that no misconduct affected
the election because of the subjective reactions of
employees.
Applying the appropriate standards to the cred-
ited facts of this case , we find that the threats to
blow up the Company and physically to injure
those employees who did not support the Union
and to damage their property , would reasonably
tend to create a general atmosphere of fear and re-
prisal rendering a free election impossible . There is
no question that the nature of the threats supports
such a finding . See, e .g., Sonoco of Puerto Rico, 210
NLRB 493 (1974), and Zeiglers Refuse Collectors v.
NLRB, 639 F.2d 1000 (3d Cir. 1981).
Further, the threats involved here were not di-
rected solely to specific individuals , but involved
any unit employee who did not support the Union.
Thus, David Beard threatened to blow up the plant
because someone reported to the foreman that he
was harassing employees about the Union; Bobby
Dorsey threatened that "someone 's asses are in
trouble" if the Union did not win the election;
Brooksie Holden threatened that there would prob-
ably be trouble if anyone crossed the picket line
once the Union was selected ; and Gloria Mayton
threatened that people crossing the line could get
their heads blown off and their tires slashed. Leon-
ard Neal and Norris Hartefields ' remarks about
Linda Northcutt had the same implication for unit
employees who vocally opposed the Union. Short-
ly after Northcutt's antiunion speech , Neal and
Hartefields said they would like to beat her up;
Neal threatened to blow up her car and then shout-
ed "Union , union , union." Their remarks clearly
were not addressed to Northcutt as an individual,
but to her open position against the Union and any
employee who spoke out against the Union could
reasonably fear such a response from Neal and
Hartefields.
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All of the threats discussed above occurred
shortly before the election, ranging in time from 2
weeks to 2 days before the election , and were dis-
seminated to approximately 25 employees in a unit
of some 140 employees . This breadth of dissemina-
tion is not insignificant given the closeness of the
election . (The tally of ballots was 68 for and 66
against the Union with 1 challenged ballot.) The
Board has given special attention to the election
tally in evaluating coercive conduct where a
change of only a few votes could have led to dif-
ferent results . See RJR Archer, Inc., 274 NLRB
335, 336 (1985), where the union won the election
by only three votes in a unit roughly equivalent in
size to the unit in this case . See also YKK (U.S.A.),
Inc., 269 NLRB 82, 84 ( 1984).
For all of these reasons, we find the credited evi-
dence, evaluated cumulatively, shows that the
threats made by union supporters of harm, physical
injury, and property damage directed toward
known or suspected antiunion employees created a
general atmosphere of fear and coercion that ren-
dered a free choice in the election impossible.
We, therefore, shall set aside this election and
direct that a new election be conducted.8
[Direction of Second Election omitted from pub-
lication.]
8 Members Cracraft and Higgins rely principally on the threats made
by employees Neal and Hartefields in reaching this conclusion and find
the threats made by other third parties objectionable only when consid-
ered cumulatively.