Eliason Corp.

National Labor Relations Board - Board Decisions

Apr 26, 1984

270 N.L.R.B. 14 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eliason Corporation and Sheet Metal Workers'
International Association, Local No. 355, AFL-
CIO. Case 20-CA-15937
26 April 1984
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 6 July 1981 the National Labor Relations
Board issued its initial Decision and Order' in this
proceeding in which it found that the Union was
properly certified on 17 December 1980 following
a valid Board-conducted election and that the Re-
spondent Eliason Corporation had violated Section
8(a)(5) and (1) of the Act by refusing to bargain
with it as the collective-bargaining representative
of the Respondent's employees. Accordingly, the
Board ordered the Respondent to bargain with the
Union.
On 7 September 1982 the United States Court of
Appeals for the Sixth Circuit denied enforcement2
of the Board's Order and remanded the proceeding
to the Board for the purpose of conducting a hear-
ing on the Respondent's allegation of union mis-
conduct prior to the election. The Board accepted
the remand and, in accordance therewith, a hearing
was held before Administrative Law Judge Gerald
A. Wacknov.
On 9 September 1983 Judge Wacknov issued the
attached decision. The Respondent and the Union
have filed exceptions, with supporting briefs, to the
judge's decision.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs3 and
has decided to affirm the judge's rulings, findings,4
'256 NLRB 1121.
688 F.2d 22.
S The Respondent has requested oral argument. The request is denied
as the record, exceptions, and brief adequately present the issues and the
positions of the parties.
4 In agreeing with Judge Wacknov that certain remarks made by union
observer Roy Hutton to employee Montenegro prior to the election did
not constitute objectionable conduct sufficient to set aside the election,
we do not rely on his statement that Montenegro did not feel threatened
by Hutton's remarks since it is well established that the subjective reac-
tions of employees are irrelevant to the question of whether objectionable
conduct occurred, See Beaird-Poulan Division, 247 NLRB 1365, 1370
(1980). Furthermore, in view of their agreement with the judge's finding
that "the record does not show that the threats... were in any respect
related to the union activity or lack thereof of the Spanish surnamed em-
ployees or to the union activity of Hutton," Members Zimmerman and
Dennis find it unnecessary to determine if Hutton was an agent for the
Union. Member Hunter would find Hutton not to be an agent for the
Union for the reasons stated by Judge Wacknov in his decision.
270 NLRB No. 3
conclusions, and recommendations. Accordingly,
we shall affirm our initial Decision and Order in its
entirety.
ORDER
The National Labor Relations Board affirms its
original Decision and Order (256 NLRB 1121
(1981)).
s In his decision Judge Wacknov suggests that "due to the paucity of
evidence proffered by the Respondent" in support of its objection to the
election, the Board should give consideration to the Union's request for
litigation expenses. The Union, while agreeing with the judge's observa-
tions, nevertheless excepts to his failure to expressly recommend that
such expenses be awarded and has, again, in its brief requested that such
an award be made. The Union's request for litigation expenses is denied.
An award of litigation and other expenses is appropriate only when a re-
spondent raises patently frivolous defenses. Tiidee Products, 194 NLRB
1234 (1972). Here, the Respondent's claim that Hutton's remarks inter-
fered with the conduct of the election was found by the Sixth Circuit to
have raised a substantial issue warranting a hearing. Thus, while the Re-
spondent may have failed to produce sufficient evidence to support its
claim, it cannot be said, in light of the court's decision, that the Respond-
ent's claim was patently frivolous.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to an order directing hearing issued by the
Board on January 12, 1983, a hearing with respect to this
matter was held before me in San Francisco, California,
on June 23, 1983.
The instant hearing was directed as a result of the
remand of the case to the Board' by the United States
Court of Appeals for the Sixth Circuit,2 for the purpose
of holding an evidentiary hearing on Respondent's objec-
tions to the election in the underlying representation case
(Case 20-RC-14957).
The election objections involved herein concern Re-
spondent's contention that prior to the election conduct-
ed in Case 20-RC-14957 on June 12, 1980, the Union's
observer, Roy Hutton, threatened employees with bodily
harm, and that such misconduct affected the outcome of
the election. The Board, relying on the Regional Direc-
tor's Report on Objections issued on July 18, 1980,
issued a Decision and Certification of Representative on
December 17, 1980. Subsequently, as noted above, the
United States Court of Appeals for the Sixth Circuit de-
termined that an evidentiary hearing on Respondent's ob-
jections was warranted and remanded the case to the
Board for that purpose.
The Board's order directing hearing specifies that the
instant hearing shall be for the sole purpose of determin-
ing whether Hutton's alleged misconduct affected the
outcome of the election.
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
The Board's initial Decision and Order granting the General Coun-
sel's Motion for Summary Judgment is reported at 256 NLRB 1121
(1981).
I Eliason Corp. v. NLRB, Docket No. 81-1463 (6th Cir. 1982).
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ELIASON CORP.
to introduce relevant evidence. The General Counsel and
the Union stated their respective positions and arguments
at the hearing, and Respondent has filed a posthearing
brief.
On the entire record, and consideration of the argu-
ments of counsel and the brief submitted, I make the fol-
lowing
FINDINGS OF FACT
Respondent presented evidence establishing its attempt
but failure to locate a critical witness to this proceeding,
namely, Gabriel Montenegro, an employee to whom Roy
Hutton directed certain threats against other employees.
Thereupon, pursuant to Rule 804 of the Federal Rules of
Evidence providing for the admissibility of hearsay evi-
dence in the event of the unavailability of a witness, I
admitted into evidence Montenegro's affidavit, given to a
Board agent on July 1, 1980.
Montenegro's affidavit, in pertinent part, states as fol-
lows:
On or about June 10, 1980 myself along with two
neighbors were standing in front of our apartment
complex. Roy Hutton and Steve Bradley walked
up. They were going to visit another man who
lived in the apartment complex. Hutton had been
fired from Eliason Corp. the same day and seemed
that he was angry. Hutton stated "I'm going to kick
some mexican asses and I going to start with Louie.
[Louis Madrigal] I'm going to kill him." Hutton re-
peated the threat 3-4 times and then left to visit
Hank---. Hutton and Bradley returned about 30
minutes later and repeated the threat again. At this
point I told him he should tell Louie to his face and
not me. Bradley didn't say anything and they left.
I told Louis Madrigal and another employee Eti-
lano Olmos about the above incident on June 11,
1980 at work. I didn't tell any one else about the
incident.
On the day of the election there were six mexi-
cans on lay off and none of us knew they could
vote until a day or two after the lay off. We learned
from the front office that the six employees could
have voted.
On the day of the election Roy Hutton acted as
the union observer. He didn't say anything to me
when I voted and to the best of knowledge didn't
say anything to Madrigal or anyone else.
Respondent called Gilbert Corvello, business manager
and financial secretary of the Union, as a witness, for the
apparent purpose of attempting to establish that employ-
ee Hutton was an agent of the Union. Corvello testified
that Hutton was a union proponent although he was not
a member of the Union. Corvello would on occasion
speak to Hutton, as well as to other interested employees
who were also proponents of the Union, regarding the
support among the employees toward the Union. Corvel-
lo's testimony establishes that his relationship with
Hutton was a casual one, and was not different from his
relationship with other employees who favored the
Union.
Corvello testified that subsequent to the election, ap-
parently as a result of the Employer's election objections,
he learned of the alleged threats by Hutton. He there-
upon phoned Hutton and inquired about it. Hutton, ac-
cording to Corvello, denied that he made any such
threat.
Regarding the fact that Hutton acted as the Union's
election observer, Corvello testified that on the day of
the election he was present at a preelection meeting at
the Employer's premises. Hutton, who had been dis-
charged several days before, appeared at the Employer's
premises and asked the Board agent whether he was eli-
gible to vote. Corvello had not requested Hutton's pres-
ence, and intended not to have an observer during the
election. However, since Hutton was present, Corvello
thereupon asked the Board agent if Hutton could act as
the Union's observer. According to Corvello's testimony,
the Board agent then asked Respondent's attorney, Lee
Boothby, whether Respondent objected to this request.
Boothby initially voiced an objection based on the fact
that Hutton had been terminated and was no longer an
employee, but then withdrew this objection. Thereupon,
Hutton became the Union's election observer. Corvello's
testimony stands unrebutted in the record.
The record contains a representation by Respondent's
attorney that an attempt was made to locate two former
employees, namely, Danny Flores and Tony Gomez,
who purportedly had evidence supporting the Employ-
er's objections. However, the details of such attempts to
find the individuals were not specified on the record.
Further, Respondent's attorney represented on the
record that more important than its attempt to locate the
aforementioned employees was Respondent's reluctance
to call them as witnesses without first examining the affi-
davits which, Respondent believed, they had given to
the Board during the course of the investigation. Upon
being advised that no such affidavits existed, Respondent
made no effort to obtain their testimony.
Further, the record shows that Louis Madrigal, the in-
dividual who, according to Montengro's affidavit, was
specifically threatened by Hutton, was readily available
as a witness. However, when Respondent's attorney
learned there was no affidavit from Madrigal, it elected
not to call him. Similarly, Respondent elected not to call
Hutton, who was also available.
Conclusions and Recommendations
The burden of proving that an election should be in-
validated because of objectionable conduct rests with the
party filing the objections, in this case, Respondent.
NLRB v. Mattison Machine Works, 365 U.S. 123, 124
(1961); Campbell Products Department, 260 NLRB 1247,
1249 (1982).
In Price Bro. Co., 211 NLRB 822, 823 (1974), the
Board reiterated the well-established principle that:
. . . the standard to be applied in determining
whether an election will be set aside on the basis of
conduct not attributable to one of the parties is
whether the character of the conduct was so aggra-
vated as to create a general atmosphere of fear and
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reprisal rendering a free expression of choice of rep-
resentatives impossible. '
Central Photocolor Company, Incorporated, 195 NLRB 839,
and cases cited therein at fn. 2.
Reliable record evidence shows, and I find, that Roy
Hutton, who had recently been discharged by the Em-
ployer, told employee Montenegro that he intended to
"kick some mexican asses" and to "kill" another Spanish-
surnamed individual, Madrigal, all employees of Re-
spondent. There is no record evidence that Montenegro
felt threatened by Hutton's remarks. Nor does the record
reveal a probable reason for such threats. More impor-
tantly, the record does not show that the threats, which
Hutton repeated to Montenegro, were in any respect re-
lated to the union activity or lack thereof of the Spanish-
surnamed employees or to the union activity of Hutton.
Regarding Respondent's contention that Hutton was
an agent of the Union, the record does not demonstrate
that Hutton's conduct was either motivated or condoned
by the Union, or that Hutton's status vis-a-vis the Union
was different from other rank-and-file employees who fa-
vored the Union. Clearly, contrary to Respondent's posi-
tion, the record evidence does not establish that Hutton
was an agent of the Union. Owens-Corning Fiberglas
Corp., 179 NLRB 219, 223 (1969), affd. 435 F.2d 960 (4th
Cir. 1970); Tennessee Plastics, 215 NLRB 315, 319 (1947),
enfd. 525 F.2d 670 (6th Cir. 1975); Cambridge Wire Cloth
Co., 256 NLRB 1135 (1981).
The fact that certain Spanish-surnamed employees may
not have voted in the election may not, based on the
record evidence, be reasonably attributed to Hutton's
threats. s First, Montenegro's affidavit states that "on the
day of the election there were six mexicans on layoff,
and none of us knew they could vote." Thus, it is rea-
sonable to assume, absent any evidence to the contrary,
that these individuals refrained from voting either be-
cause they were unaware of their eligibility or because,
as they were not working at the time of the election,
they had little interest in its outcome. Secondly, the
record shows that Hutton's participation as an observer
during the election was by chance, and with approval of
3 The tally of ballots shows that of approximately 17 eligible voters, 6
cast ballots for and 3 cast ballots against the Union. There was one chal-
lenged ballot, apparently that of Hutton. Thus, of the seven eligible
voters who refrained from voting, six were apparently on layoff.
Respondent, and there is no showing that the employees
who refrained from voting were even aware that Hutton,
who had been discharged several days before, was on
the premises.
On the basis of the foregoing, I find that the Employer
has failed to sustain its burden. Thus, the evidence does
not substantiate Respondent's contention that the election
should be invalidated due to Hutton's threats, which did
not, insofar as the record shows, create a general atmos-
phere of fear and reprisal rendering a free expression of
choice of representative impossible. Price Bros Co.,
supra; ARA Services, 263 NLRB 88 (1982).
Respondent maintains that, regardless of the merits of
its objections, because of the passage of time and the de-
pletion of the bargaining unit it would be appropriate to
conduct a second election rather than require it to bar-
gain. The Charging Party asserts that not only is a bar-
gaining order mandated, but Respondent's appeals and
delay of the matter have not been undertaken in good
faith, and are frivolous, as demonstrated by Respondent's
failure to even proffer any evidence regarding its objec-
tions, other than what is contained in the Regional Di-
rector's Report on Objections. Therefore, the Charging
Party requests that it be reimbursed by Respondent for
its litigation expenses and other costs. As the Board's
order has specifically limited my authority in this matter,
it appears that these collateral contentions are not prop-
erly before me, and should properly be referred to the
Board. However, due to the paucity of evidence prof-
fered by Respondent, which relates to whether its objec-
tions were advanced in good faith, it would appear that
the Charging Party's request for reimbursement of litiga-
tion expenses, under the circumstances, is certainly de-
serving of serious consideration.
On the foregoing findings of fact and conclusions of
law and on the entire record, it is recommended4 that
the Board enter an order against Respondent containing
the same cease-and-desist provisions and affirmative re-
medial action as are contained in the Order of the Board
herein reported at 256 NLRB 1121 (1981).
' If no exceptions are filed as provided in Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
16