Seaward International, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1985

275 N.L.R.B. 940 (N.L.R.B. 1985)

940 SEAWARD INTERNATIONAL
Seaward ' International , Inc. and District Lodge 186
of the International Association of Machinists
and Aerospace Workers, AFL-CIO, Petitioner.
-Case 5-RC-11608 -
28 -June 1985
SUPPLEMENTAL DECISION AND
DIRECTION OF SECOND ELECTION
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board has consid-
ered objections to an election held 25 September
08r; and the.-hearing officer's report recommend-'
ing disposition of them.
The election was conducted pursuant to a Stipu-
lated Election Agreement. i The ' tally of ballots.
shows 15 for, and 9 against, the Petitioner, with 6
challenged ballots,- a .number sufficient to affect the
results. l
The Board has reviewed the record in light of
the exceptions and brief and adopts the hearing of-
ficer's findings2 and recommendations, only to the
extent consistent with this supplemental decision.
Objection 1 alleged that prounion supporters en-
gaged in threats and acts of violence which created
a-coercive atmosphere and interfered with the em-
ployees' free choice in the election. More specifi-
cally, the Employer alleged, inter alia, that employ-
ee Wiltshire was sprayed in the face with a chemi-
cal by a prounion employee because of Wiltshire's
neutral position regarding the Union; that employ-
ee Cooper was informed that he would be the next
employee to be sprayed; and that, following an ar-
gument during which employee Penwell refused to
wear a union hat proffered by employee union sup-
porter Terry Smith, Penwell was confronted in the
Employer's parking lot after work by Smith and
another union supporter, Logsdon, who carried a
four-by-four board. The Employer also maintains
that -these actions are attributable to the Union, in-
asmuch as they were acts engaged in by active sup-
porters of the Petitioner.
The hearing officer recommended, inter alia, that
Objection 1 be overruled. The Employer has ex-
cepted,, and we find merit to its exceptions.
The -Employer is engaged in the manufacture of
marine fenders . The - record shows that employees
Terry and Wayne Smith contacted the Union re-
garding the possibility of organizing Seaward's em-
ployees. Three union representatives (a lodge rep
resentative and representatives from two neighbor-
ing locals) were placed in charge of organizing the
plant and conducted the eight or nine organizing
meetings which were held at the union hall. Al-
though employees. who attended the meetings were
encouraged to sign union cards, there is no evi-
dence that any employees were instructed to pass
out'cards, solicit signatures , or distribute union lit-
erature.3
On 4 September -1981, approximately 3 weeks
before 'the election, Wiltshire, an employee who
was neutral -about supporting the Union, received
chemical spray ' in' his face several times during a
routine spraying job.4 As a result of the spraying,
Wiltshire was treated at a local hospital and later
released . The record shows that, although a
number of employees have received spray during
the spraying process in' the past, none have re-
quired hospital treatment.
According to Wiltshire's uncontradicted testimo-
ny, on the evening of 4 September Wayne Smith
came to Wiltshire's home and told him, in refer-
ence to the spraying incident, that it was "wrong"
and never should have happened, that "they" were
not there to force people - to sign union cards, and
that he was "getting out because it was handled
wrong ."5 Wiltshire also testified that Wayne Smith
told him that employee Cooper would be next to
be sprayed. Evidence shows that Wiltshire relayed
i The Employer' filed objections to conduct affecting the results of the
election on 2 October 1981 Following an investigation concerning the
challenges and objections , the Acting Regional Director issued a report
on the challenges and objections in which he recommended that the chal-
lenge to the ballot cast by Chad Blake be sustained , the Employer's ob-
jections be overruled in their entirety, and a Certification of Representa-
tive issue The Employer filed timely exceptions to the Acting Regional
Director's report By an unpublished decision and order dated 7 March
1984, the Board adopted the Acting Regional Director's recommendation
sustaining the challenge to Blake's ballot but, finding that the Employer's
Objections I and 2 raised substantial issues of fact and law, directed a
hearing on these objections The 4-day hearing was held before Hearing
Officer Elizabeth M Tursell on 5-8 June 1984. On 4 October 1984, the
hearing officer issued her report, to which the Employer has filed timely
exceptions
2 The Employer has excepted to some of the hearing officer 's credibil-
ity resolutions The Board's established policy is not to overrule a.hear-
ing officer 's credibility findings-unless the clear preponderance of all the
relevant evidence convinces us that the resolutions are incorrect Coca-
Cola Bottling Co ofMemphis, 132 NLRB 481 , 483 (1961 ) We have care-
fully examined the findings and find no basis for reversing the findings
3 The only union literature distributed was a 21 September 1981 letter
which was prepared by the union representatives and mailed directly to
the employees' homes
4 One step in the Employer's manufacturing process involves spraying
fenders with elastomer This process takes place in the spray booth
where a large, lathe-like machine rotates the fender in order to assure the
fender is completely sprayed Employees , known as "sprayers ," spray
elastomer on the fender as nylon filaments . are wound onto the fender;
employee "wipers " wipe off the excess elastomer Fans located several
feet behind the fender are used to draw the excess spray from the booth
On the day in question , employees Terry Smith, Tomasik, Logsdon, Wilt-
shire, Martin, and Patton and Foreman Wood were assigned to work in
the spray booth
5 Wiltshire testified that Wayne Smith used the term "they" and did
not identify individuals by name Wiltshire testified that he thought that
the term "they" referred to the person who sprayed him He also testified
that he presumed that the spraying incident and the Union were connect-
ed because of the nature of Wayne Smiths' remark and as the Union was
mentioned in the course of the conversation Wayne Smith did not testi-
fy
275 NLRB No. 130
SEAWARD INTERNATIONAL
this statement-to'Cooper and that rumors concern-
ing Wiltshire's spraying circulated throughout the
plant.6 . .
The 'record also shows that, on- 16 September,
employees Terry Smith and Penwell became - in=
volved in an argument. In' the course of the argu-
ment Terry -Smith; in essence, told Penwell 'that
Penwell did not have the backbone to wear a
union hat or T-shirt. In response,'- Penwell grabbed
Terry Smith by the throat. Smith pushed Penwell
away, left the work area, and, after receiving per-
mission to leave work, punched out.' According to
credited testimony, at the end of-,the shift; approxi-
mately 2 hours later, Terry Smith confronted Pen-
well in the Employeis parkirig lot whereupon Pen-
well pulled a sickle'-from the trunk of his car. Em-
ployee Logsdon, ' ho in the meantime' had ap-
proached Terry Smith and Penwell,. picked. up ' a
four-by-four board lying nearby, stating, in essence,
that it was going to, be a fair fight. Penwell then
got into his car and left the premises. A number of
employees witnessed this incident which- was later
the subject of conversation, among employees.-
Further, employee testimony - indicates that,
during the campaign, the amount of graffiti written
on the Company's walls increased. Evidence shows
that names of employees, who .were both for' and
against the Union, appeared on the walls accompa-,
nied by epithets such as "scab" and. "deerslayer."
Finally, one employee, Tomasik, testified. that
during a conversation with Logdson, Logsdon told
him that Tomasik and others would-be scared to
cross a picket line in the event of a walkout. .
Initially, with respect to the Employer 's allega-
tion that the alleged objectionable conduct was at-
tributable to the Union, the hearing officer found
that while Lodgdon; Terry Smith, and Wood- were
active union supporters and prominent. figures,' in
the organizing campaign, this was 'not sufficient 'to
establish agency status. She' further found, in the
absence of evidence of agency status or a"showing
that the Union authorized or condoned the alleged
conduct, that none ' of the employees'. involved in
this, proceeding was -Acting -,as an agent of , the
Union. Having found no evidence of agency status,
the hearing officer analyzed the" alleged - objection-
able conduct under the -standard applied 'to,:thiid-
party conduct, i.e., whether, the character.- of the
conduct was so aggravated as to' create a general
atmosphere of fear. or reprisal rendering free- ex-
pression impossible.7- With respect to the spraying
6 Generally, testimony indicates that while almost all of the employees
knew that Wiltshire had been sprayed, most did not know the details "
7 Central Photocolor Co, 195 NLRB 839 (1972)
941
incident, the hearing officer found, based-in part-on
Wiltshire's credited testimony, `that there was no
evidence that the spraying incident was deliberate.
She also found that there was no motive for the
spraying.8 With respect to the incidents involving
Terry Smith and Penwell, the hearing officer found
that such incidents reflected a clash of personalities
rather than hostility toward the' Union.9 She also
found that, although conversations regarding both
the Terry Smith/Penwell incidents and Wiltshire's
spraying circulated throughout the plant, such con-
. versations were general and did not link the inci-
dents to the Union. Finally, with respect to miscel-
laneous' allegations of threats and property damage,
the hearing officer, based primarily on her credibil-
ity resolutions, i ° found only (a) that Logsdon had
told Tomasik that he and others would be scared
to' cross a picket line, and (b) there was an increase
in the • amount -`of writing appearing on company
walls. She found these incidents trivial. Applying a-
third-party conduct standard, for reasons noted
above, the hearing officer found- that none of the
acts described; whether viewed individually or cu-
mulatively, were 'sufficiently severe to have inter-
fered with employee free choice in'the election.'
-We agree with the hearing officer that the test to
be- applied -to the alleged conduct is whether the
conduct was ' so aggravated as to create a coercive
atmosphere rendering the exercise of free choice
impossible. i i However, we disagree with her _find-
ing', that the conduct, when considered'cumulative-
ly,; was not so severe as to have -interfered with the
election. ' ' •
In finding that the spraying incident didnot..con-
stitute, in part, objectionable .conduct, the hearing
officerfound no evidence that the spraying was de-
liberate or'- there was a motive for the spray-
ing. In so. doing„ she ,did not give appropriate
weight to undisputed.testimony that on the evening
of the incident prounion 'employee Wayne Smith
told Wiltshire . that "they" were not there to force
people, to sign union cards. - In - this respect, - she
found that, as' Wayne Smith was not working in
the- spray_'"booth- on '4 September, he did not have
direct knowledge of how the incident occurred and
that ` his' comments were only based on -what he as--
e In-, finding no, motive' for'the-spraying, the, hearing officer expressly
discredited Cooper's testimony that-Wiltshire told him that he•would'be
the next recipient of phsyical violence because Cooper had not commit-
ted himself to the Union and that rumors that 'Cooper' would be "next"
circulated 'throughout the plant`-''' "
9 In support of this finding, the hearing officer relied on testimony of
employees , including Penwell, indicating that Penwell and Terry--Smith
'had had a'few disagreements in tlie'past
10 See his 8 and 9
11 Because we are setting aside the election under a third-party con-
duct standard , we find it unnecessary to pass on the heanng officer's dis-
cussion of union agency ' ' .
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sumed had happened. Contrary to the hearing offi-
cer, we find that while Wayne Smith may not have
had direct knowledge of how the incident occurred,
his absence from the booth on 4 September does
not necessarily reflect a lack of knowledge of why
the incident occurred. Indeed, we find that the
general -tenor of his remarks suggests a link be-
tween Wiltshire's spraying and his neutral position
on the Union. Further, whether or not the evi-
dence shows that the action was deliberate, the un-
disputed facts do show that an employee who was
not committed to the Union received an excessive
amount of spray in his face, requiring hospital
treatment ; that such an incident had not previously
occurred; and that a union supporter subsequently
indicated that the action was "wrong," was union-
related, and, moreover, informed the employee
who was sprayed that another employee would be
next . Thus, although the hearing officer discredited
Cooper's testimony ,that rumors that he would-be
"next" circulated throughout the plant,12 it is clear
from the record that at least three employees, i.e.,
Wayne Smith, Cooper, and Wiltshire, knew of the
spraying incident and its link to the Union.
Further, in finding the Terry Smith/Penwell iii-,
cidents not to be objectionable conduct, the hear-
ing officer characterized them as personal disagree-
ments. However, it is clear from the record that
the incidents stemmed 'from a heated argument be-
tween the two men' that arose over a wearing
union hat and T-shirt. We find the fact that such a
discussion (which included a reference to Penwell's
lack of courage) could 'evoke a physical response,
i.e., Penwell's grabbing Terry Smith by the throat,
and subsequently accelerate into a confrontation in-
volving an employee with a sickle and another em-
i 2 In her report , the hearing officer generally credits Wiltshire's testi-
mony regarding the spraying incident , including Wiltshire 's account of
Wayne Smith's remarks on the evening of 4 September. Notwithstanding
her discrediting of Cooper's testimony regarding threats of future vio-
lence (noted at fn . 8 supra) she also expressly found it undisputed that
Wayne Smith told Wiltshire that Cooper would be next and that this
statement was relayed to Cooper. As we rely on the hearing officer's
findings that Wayne Smith 's remarks to Wiltshire are undisputed and that
Cooper was informed of these statements , which are supported by the
record , we find it unnecessary to disturb the hearing officer's discrediting
Cooper regarding this matter . However, we note that such finding ap-
pears to be inconsistent with her crediting of Wiltshire on the point
ployee with a four-by-four indicates the tense at-
mosphere in which the election took place. Fur-
ther, unlike the Wiltshire incident, the record
shows that a number of employees' actually wit-
nessed or were informed about the Terry
Smith/Penwell incidents. Of the employees who
testified, two (Wood and Murphy) witnessed both
incidents. One employee (McIntyre), who wit-.
nessed the parking lot incident, heard about the
previous incident involving the 'remark that Pen-
well was afraid to support the Union. Additionally,
employee Leake witnessed the initial altercation be-
tween Penwell and Smith regarding wearing Union
unit insignia . Thus, from the record it is clear that
at-least 6 individuals out of a union of approximate-
ly 25-30 employees were aware that the Terry
Smith/Penwell arguments arose from a union-relat-
ed dispute.
Evaluated cumulatively, we find that the -inci-
dents described above, which involved threats and
actions involving physical harm, disturbed the lab-
oratory conditions necessary for an election. We
further find that evidence of a substantial increase
in the amount of graffiti could only contribute,
albeit less significantly, - to the generally coercive
atmosphere.
Therefore, because of the seriousness of the inci-
dents, the proximity of these incidents to the elec-
tion, their occurrence in a relatively small unit, and
the dissemination of the incidents, we will set this
election aside and direct a new election.13
[Direction of Second Election omitted from pub-
lication.] '
13 The hearing officer also overruled the Employer's Objection 2 al-
leging that union supporter Logsdon offered to pay employee Cather's
union dues if she voted for the Union Because we have found that the
conduct alleged by Objection I warrants setting aside the election, we
find it unnecessary to address the merits of Objection 2
Member Dennis concurs in the result, emphasizing the following First,
if the individuals who cast the unresolved challenged ballots were eligible
and voted against the Union , the margin of the Union's victory would
have been as slim as one vote . With the election results so close, the mis-
conduct must be closely scrutinized See NLRB v US.M. Corp., 517 F 2d
971, 976 fn. 5 (6th Cir . 1975) Second, in a small unit , two employees
were involved in, serious incidents of actual violence because they failed
to assume a prounion stance during the election campaign Finally, these
incidents were not isolated , but rather were disseminated to other unit
employees.