Accubuilt, Inc.

National Labor Relations Board - Board Decisions

Dec 31, 2003

340 N.L.R.B. 1337 (N.L.R.B. 2003)

ACCUBUILT, INC. 1337
Accubuilt, Inc. and International Union, United
Automobile, Aerospace, Agricultural Implement
Workers of America, AFL–CIO. Case 8–RC–
16511
December 31, 2003
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN,
SCHAUMBER, AND WALSH
The National Labor Relations Board has considered
objections to an election held April 17, 2003,1 and the
hearing officer’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The final tally of ballots
shows 78 for and 74 against the Petitioner.2
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings and recommendations, and finds that a certifica-
tion of representative should be issued.
The Employer objected to the election results, arguing,
inter alia, that several prounion employees made elec-
tion-related threats against coworkers during the election
campaign.3 The hearing officer overruled the objections.
He found that employees had made four threats, but con-
cluded that these incidents, which potentially affected
only three employees and were not disseminated to any
additional bargaining unit employees, were insufficient,
either separately or in the aggregate, to warrant setting
aside the election. The Employer contends that, given
the close electoral margin, these four incidents require us
to set aside the election. We affirm the hearing officer.
Under longstanding precedent, the Board will set aside
an election because of the conduct of third parties if the
conduct creates a general atmosphere of fear and reprisal
that renders a fair election impossible. Westwood Hori-
zons Hotel, 270 NLRB 802, 803 (1984). In determining
whether a threat is serious and likely to intimidate pro-
spective voters to cast their ballots in a particular man-
ner,
the Board evaluates not only the nature of the threat it-
self, but also whether the threat encompassed the entire
bargaining unit; whether reports of the threat were dis-

1 All dates are in 2003, unless otherwise indicated.
2 The initial tally of ballots showed 75 for and 74 against the Peti-
tioner, with 3 challenged ballots, a sufficient number to affect the re-
sults. The three challenged ballots were opened and counted, as or-
dered by the Regional Director, and they are not at issue in this deci-
sion.
3 The Employer does not except to the hearing officer’s conclusion
that none of the conduct it has raised before the Board can be attributed
to the Union or its agents.
seminated widely within the unit; whether the person
making the threat was capable of carrying it out, and
whether it is likely that the employees acted in fear of
his capability of carrying out the threat; and whether
the threat was “rejuvenated” at or near the time of the
election.
Id. (Citations omitted.)
Although the Board will pay particular attention to the
fairness of close elections, see, e.g., Robert Orr-Sysco
Food Services, 338 NLRB 614 (2002), the Westwood
Horizons standard applies even where the election mar-
gin is narrow.4 See Corner Furniture, 339 NLRB 1122,
1123 (2003). Thus, in accordance with precedent, we
assess whether a general atmosphere of fear and reprisal
existed in the Employer’s plant, rather than merely com-
paring the number of employees subject to any sort of
threats against the vote margin. We find that the four
alleged threats here, known to no more than three em-
ployees in a unit of over 150, did not create a general
atmosphere of fear and reprisal.
1. First, the hearing officer found that employee Jar-
rod Satterfield made an allegedly threatening statement
to his coworker Tony Russo sometime in March (which
was not clearly within the critical period). This state-
ment occurred in the context of a discussion about the
pros and cons of unionization, after Russo expressed
concern about being part of the election campaign be-
cause of his probationary status as a new employee.
Satterfield, whom Russo believed to be a union adher-
ent,5 told Russo that “if [he] wasn’t for them [he] was
against them.” Satterfield then pointed at prounion em-
ployee Angela Truesdale-Martin and said, “All she has to
do is file sexual harassment charges against you and you
will be fired.”
The hearing officer properly found Satterfield’s state-
ments not to be threatening. The statement regarding
sexual harassment charges and Russo’s discharge was
hypothetical on its face, and the context in which
Satterfield made the statement raises a serious question
whether it was a threat at all. Read in context, it appears
equally likely that Satterfield was merely reminding
Russo that, as a probationary employee, he lacked job
security regardless of the union campaign or his in-
volvement in it. Moreover, Satterfield did not threaten to
do anything himself to Russo. Rather, he predicted a
4 Robert Orr and the cases it cites are distinguishable on their facts
from the present case, based on the factors set out in the Westwood
Horizons test. They involved threats that were more serious, occurred
closer to the election, were disseminated more widely, and/or were
accompanied by physically threatening conduct.
5 Satterfield, however, testified that he ultimately voted against the
Union.
340 NLRB No. 161
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1338
chain of events that was clearly beyond his control, de-
pending, as it did, both on the willingness of another em-
ployee (who was not involved in the conversation or oth-
erwise aware of Satterfield’s statement) to file false
charges and on the response of the Employer if such
charges were actually filed. The Board has held gener-
ally that threats of job loss for not supporting the union,
made by one rank-and-file employee to another, are not
objectionable, and that such statements can be readily
evaluated by employees as being beyond the control of
the employees and the union. See Duralam, Inc., 284
NLRB 1419 fn. 2 (1987), and cases cited therein.
Here, Satterfield’s alleged threat of harassment charges
was similarly contingent and remote. Even setting aside
speculation about the Employer’s response and focusing
on the potential risk to Russo’s reputation, the supposed
threat remained dependent on misconduct by another
employee, whose willingness to commit such misconduct
has not even been implied, let alone demonstrated.
Satterfield’s statements were directed at only one em-
ployee, were not disseminated to other unit members,
were made at least 2-1/2 weeks (and possibly as long as
6-1/2 weeks) before the election, and were not repeated
or otherwise rejuvenated near the time of the election.
These factors support a finding that Satterfield’s state-
ments were not sufficiently serious to be objectionable.
Finally, Russo’s testimony that this event occurred
“sometime in March” leaves open the possibility that this
event may have occurred before the critical period began
on March 7. It is the objecting party’s burden to demon-
strate that objectionable conduct occurred during the
critical period. See, e.g., Gibraltar Steel Corp., 323
NLRB 601, 603 (1997). The uncertainty whether
Satterfield’s remarks occurred during the critical period
provides a separate basis for overruling this objection.
2. Second, the hearing officer found that prounion
employee Joseph Geddings told antiunion employee Eric
Greene that voting against the Union would be a good
way to get his fingers broken. Geddings is approxi-
mately 6 inches taller than Greene, but there is no evi-
dence that Geddings accompanied his statement with any
physical conduct or had any history of violence. The
hearing officer properly found that the threat was di-
rected only at Greene and was not disseminated to other
employees, was isolated, was distant in time from the
election, and was not rejuvenated near the time of the
election.
Moreover, Greene testified variously: that Geddings’
threat occurred “somewhere towards, towards the end,
the halfway point probably”; that it occurred a month and
a half or two months before the April 17 election; and
that it may have occurred days, but not weeks, before
March 12. Without making specific findings as to the
threat’s timing, the hearing officer recognized that it
could have occurred before the critical period began on
March 7. While the hearing officer overruled this objec-
tion based on factors other than the possibility that the
incident occurred outside the critical period, we find the
ambiguity of the event’s timing dispositive. Because
Greene could not specify when Geddings threatened him,
and because his testimony indicates that it may have
been outside the critical period, the Employer has not
met its burden with respect to this incident. See Allis-
Chalmers Corp., 278 NLRB 561, 563 (1986). Thus, we
find that this conduct is not objectionable.
3. Finally, the hearing officer considered evidence that
antiunion employee Nathan Eversole was the object of
two alleged threats. First, perhaps a few weeks before
the election, employees Darrin Sevitz and Dean Rex
stated that if Eversole wanted to keep his new car look-
ing the way it did, he needed to vote yes in the election.
Eversole then purchased a less expensive car from his
sister and drove that car to work most (but not all) days
for the remainder of the campaign. The hearing officer
found that Sevitz’ and Rex’s remarks, as generalized
verbal threats made by third parties, represented over-
zealous partisanship rather than meaningful threats.
American Wholesalers, Inc., 218 NLRB 292 (1975),
enfd. 546 F.2d 574 (4th Cir. 1976). As was true in
American Wholesalers, here there was no actual physical
violence, and the threats occurred in a large bargaining
unit. Because the statements about Eversole’s car were
directed only to him and were not disseminated, we agree
with the hearing officer that they did not create a general
atmosphere of fear and reprisal.
The second threat against Eversole occurred at a union
meeting the night before the election, when employees
Angela Truesdale-Martin and Camilla Irons told Ever-
sole that since he was voting no in the election, they were
“going to get [him] back.” This statement was so vague
that even Eversole himself did not understand what it
threatened. Nor was the threat made or disseminated to
any other employees. Board precedent is clear that
statements like this by nonparty coworkers are not objec-
tionable. Cal-West Periodicals, Inc., 330 NLRB 599
(2000).
4. Because the evidence establishes only one alleged
critical-period threat, there is no cumulative effect to
consider. The alleged threat against Eversole was insuf-
ficient to create a general atmosphere of fear and reprisal
ACCUBUILT, INC. 1339
that interfered with the election. Accordingly, we de-
cline to set aside the election.6
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for the International Union, United

6 Chairman Battista and Member Schaumber would set aside an
election in circumstances where the “critical period” conduct of the
third party affected a determinative number of voters, even if that con-
duct did not “create a general atmosphere of fear and reprisal.” In the
instant case, the “critical period” conduct affected only one employee.
The election was decided by a four-vote margin. Thus, Chairman Bat-
tista and Member Schaumber concur in the result.
Automobile, Aerospace, Agricultural Implement Work-
ers of America, AFL–CIO, and that it is the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All full-time production and maintenance employees at
the Employer’s 2550 Central Point Parkway facility,
but excluding all office clerical employees, technical
employees, professional employees, guards, and super-
visors as defined in the Act.