Buedel Food Products

National Labor Relations Board - Board Decisions

Oct 31, 1990

300 N.L.R.B. 638 (N.L.R.B. 1990)

638
300 NLRB No. 70
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer has excepted to some of the hearing officer’s credibility
findings. The Board’s established policy is not to overrule a hearing officer’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Stretch-Tex Co., 118 NLRB 1359,
1361 (1957). We find no basis for reversing the findings.
2 In considering the hearing officer’s recommendation to overrule the Em-
ployer’s objections, we do not rely on any determination of whether bargaining
unit employee Gabriel Soria took seriously former employee John Shields’
threat that Shields would burn Soria’s car if he did not vote for the Union.
See Duralam, Inc., 284 NLRB 1419 fn. 2 (1987).
Unlike the hearing officer, we do not find testimony about Shields’ conduct
outside the critical period necessarily irrelevant to the determination of wheth-
er he had a propensity for violence, so long as the described conduct occurred
within a reasonable time prior to the election. Such evidence is admissible as
background evidence insofar as it casts light on conduct within the critical pe-
riod. We find it unnecessary, however, to rely on that evidence in finding that
the threat to Soria created an atmosphere of fear and reprisal sufficient to af-
fect this election.
3 206 NLRB 28, 29 (1973). The cases cited by our dissenting colleague are
distinguishable. In Bell Trans, 297 NLRB 280 (1989), the Board noted that
the incident in question would reasonably be viewed as a personal dispute be-
tween two employees, which was not tied to the election. In Duralam, Inc.,
284 NLRB at 1420, the majority emphasized that the only statement that could
be characterized as a specific threat had been ‘‘neutralized’’ by being exposed
by another employee as mere ‘‘empty boasting and posturing.’’ Similarly, in
John M. Horn Lumber Co., 280 NLRB 593 (1986), in adopting the hearing
officer’s report, the majority appended pertinent portions which emphasized
that there was no evidence that one of the two incidents in question was linked
to the election and that the other, when viewed in the context of the behavioral
norms of the particular workplace, could not objectively be taken as coercive.
4 Id.
Buedel Food Products Co. and Grocery and Food
Products Processors Canneries Frozen Food
Plants Sugar Processors Confectioners and
Vending Miscellaneous Drivers and Salesmen,
Warehousemen and Related Office Employees
Union, Local No. 738, an affiliate of Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL–CIO, Petitioner. Case 13–RC–17494
October 31, 1990
ORDER REMANDING PROCEEDING TO
HEARING OFFICER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered the hearing officer’s re-
port recommending disposition of objections filed by
the Employer to an election held July 22, 1988. The
election was conducted pursuant to a Stipulated Elec-
tion Agreement. The revised tally of ballots, issued
after the Employer withdrew its challenge of one ballot
and it was opened and counted, shows 7 for and 4
against the Petitioner, with 1 challenged ballot, a num-
ber which, as explained below, may be sufficient to af-
fect the results.
The Board has reviewed the record in light of the
Employer’s exceptions and brief and has adopted the
hearing officer’s findings1 and recommendations2 only
to the extent consistent with this remand.
Contrary to the hearing officer, we find that a threat
to burn bargaining unit employee Gabriel Soria’s car
if he did not vote for the Petitioner could have, under
certain circumstances, created a sufficient ‘‘atmosphere
of fear and reprisal’’ to warrant setting aside the elec-
tion. Former employee John Shields’ threat was di-
rected at Soria ‘‘with the obvious aim of influencing
him to vote for the Union’’ and it was a specific threat
to do substantial damage. Steak House Meat Co.3 Sub-
sequently Soria told employee Juan Hernandez about
Shields’ threat. Much hinges therefore on whether Her-
nandez, the challenge to whose ballot has not been re-
solved, is a member of the bargaining unit.
We must consider that two votes, Soria’s and Her-
nandez’, were influenced by Shields’ intimidation. We
must also allow for the possibility that the seven votes
for the Petitioner included Soria’s and that Soria might
have voted against the Petitioner absent the intimida-
tion. In that eventuality, the tally would have been 6
to 5 in favor of the Petitioner, and Hernandez’ vote
would then be determinative.
Consequently we remand this case solely for a deter-
mination of whether Hernandez’ vote should be count-
ed. If Hernandez is found to be a member of the bar-
gaining unit, the election should be set aside because
Shields’ intimidation would make it ‘‘impossible’’ that
a tally in favor of the Petitioner reflected the free
choice of a majority of the employees.4 On the other
hand, if Hernandez is not a unit employee, the threat
to Soria would not be sufficient grounds to set aside
the election because the Petitioner would have won no
matter how Soria voted.
ORDER
It is ordered that the above-captioned proceeding be
remanded so that a hearing may be held for the limited
purpose of considering all relevant evidence and mak-
ing credibility determinations, findings of fact, conclu-
sions of law and recommendations concerning whether
employee Juan Hernandez is a member of the bar-
gaining unit in order to determine whether the election
should be set aside.
IT IS FURTHER ORDERED that the hearing officer des-
ignated for the purpose of conducting the hearing shall
prepare a supplemental report that contains resolutions
of the credibility of the witnesses, findings of fact,
conclusions of law, and recommendations pertaining to
the bargaining unit status of employee Juan Hernandez
and its effect on the election results. Copies of the
Supplemental Report shall be served on the parties,
after which the provision of Section 102.69 of the
Board’s Rules and Regulations shall be applicable.
MEMBER DEVANEY, dissenting.
I disagree with my colleagues’ finding that former
employee Shields’ threat to employee Soria could have
created an ‘‘atmosphere of fear and reprisal’’ sufficient
to warrant setting aside election. I agree with the hear-
639BUEDEL FOOD PRODUCTS CO.
1 Like my colleagues, my analysis does not rely on the hearing officer’s
comments concerning whether Soria took Shields’ threats seriously. Duralam,
284 NLRB 1419, 1428 at fn. 2.
2 Because I do not view the incident at issue here as sufficiently aggravated
to create a general atmosphere of fear and coercion, I need not reach the issue
of the relevance of facts of Shields’ prior history to his ability to make good
on his threat to Soria.
3 See, e.g., Bell Trans, 297 NLRB 280 (1989) (employee supporter of a
union refused to admit to a union meeting an employee perceived as antiunion,
slapped the employee, shouted obscenities, and threatened to kill another em-
ployee, the incident was found too isolated to create a general atmosphere of
fear and reprisal); Duralam, Inc., 284 NLRB 1419 (1987) (even where election
was close, threats not sufficient to overturn election); John M. Horn Lumber
Co., 280 NLRB 593 (1986), revd. 859 F.2d 1242 (6th Cir. 1988) (single phys-
ical assault and separate undisseminated threats not sufficient to set election
aside, despite close tally).
4 See, e.g., Picoma Industries, 296 NLRB 498 (1989) (election set aside
where threat that employee’s car would be blown up if she did not vote for
the union was witnessed by 20 other employees and accompanied by numer-
ous other threats that continued to election day); Electra Food Machinery, 279
NLRB 279, 280 (1986) (election set aside where threats against numerous
antiunion employees wre scrawled on workplace walls and widely dissemi-
nated and were accompanied by verbal threats to individual employees);
Lovilia Coal Co., 275 NLRB 1358, 1359 (1985) (election set aside where
threats to kill employees and to blow mine up were widely disseminated and
were rejuvenated at time of election); RJR Archer, Inc., 274 NLRB 335, 336
(1985) (election set aside where threats that employee’s house and van would
be burned and that another employee’s family would be harmed were widely
disseminated and the latter employee was subjected to a campaign of anony-
mous telephone calls).
I find Steak House Meat Co., 206 NLRB 28 (1973), cited by the majority,
clearly distinguishable from the instant case. There a number of threats were
made to a 16-year-old employee some 2 weeks to several days prior to the
election, including a threat to kill the employee made by another employee
who was brandishing a knife at the time, a subsequent threat by the other em-
ployee that he would get back at the employee if he voted against the union,
and a threat by an additional employee, who had been present during the first
incident, that the employee should vote yes or just not vote and that he would
get even with the employee if the union lost the election. The Board, in setting
aside the election, emphasized the age of the employee at whom the threats
were directed and the aggravated nature of the conduct. While not condoning
the threat here, I find it falls short of the conduct in Steak House.
ing officer that under the standard set forth in
Westwood Horizons Hotel, 270 NLRB 802, 803
(1984), the election here should not be set aside. Thus,
I would certify the Petitioner as the representative of
the employees in the bargaining unit.
The facts, as found by the hearing officer, are
uncontroverted. Between 1 and 2 weeks before the
election, Soria encountered Shields, who by then no
longer worked for the Employer, at a location away
from the worksite. Shields told Soria that if he did not
vote for the Union, Shields would burn Soria’s car.
Soria told his wife, a nonunit employee of the Em-
ployer, and Hernandez, who voted in the election but
has been challenged as a supervisor, of the incident.
As a threshold matter, I share my colleagues’ view
that the hearing officer correctly found that the conduct
described above was not attributable to an agent of the
Petitioner and that it is governed by the standard for
determining whether third-party conduct is sufficiently
aggravated to render ‘‘a free election impossible.’’
Westwood Horizons Hotel, supra at 803.1 However, I
view the facts here as clearly indicating that Shields’
threat does not constitute such aggravated conduct, and
I find no evidence to indicate that the incident created
a general atmosphere of fear and coercion.2 Thus, the
threat occurred about 10 days before the election, was
disseminated only to Soria’s wife, who is not a unit
employee, and to Hernandez, whose challenged ballot
is not determinative of the outcome here. In addition,
the threat was unaccompanied by physical violence or
damage to property and was not rejuvenated before the
election. Moreover, the incident occurred away from
the Employer’s facility, lasted only a few seconds, in-
volved a threat directed at Soria alone rather than at
other employees who did not support the Petitioner,
and was not witnessed or condoned by any representa-
tive of the Petitioner. All of these factors have been
cited in cases in which the Board has found threat-
ening conduct by third parties insufficient to overturn
an election.3 These cases instruct that isolated single
incidents like Shields’ threat to Soria, while unques-
tionably regrettable, simply do not cast sufficient doubt
on the integrity of the electoral process to warrant in-
validation of the election. By contrast, where the Board
has found that third-party threats have interfered with
an election, the conduct at issue has been more serious
in nature and has been widely known in the unit.4
Thus, in light of precedent, I view my colleagues’
analysis as not in accordance with the Westwood Hori-
zons standard. Accordingly, I respectfully dissent.