KMS Corp.

National Labor Relations Board - Board Decisions

May 30, 1979

242 N.L.R.B. 633 (N.L.R.B. 1979)

KMS CORPORATION
KMS Corporation and International Brotherhood of
Electrical Workers, Local 640, Petitioner. Case 28-
RC-3547
May 30, 1979
DECISION AND DIRECTION
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
Pursuant to the authority granted it by the Na-
tional Labor Relations Board under Section 3(b) of
the National Labor Relations Act, as amended, a
three-member panel has considered determinative
challenges and objections in an election held on Octo-
ber 25, 1978,' and the Hearing Officer's report recom-
mending disposition of same. The Board has reviewed
the record in light of the exceptions2 and briefs, and
hereby adopts the Hearing Officer's findings and rec-
ommendations.3
Unlike our dissenting colleague, we do not believe
that the statement made by the Petitioner's business
manager, Glynn Ross, to employee James Nail on the
day of the election warrants setting the election
aside.4 In the first place, Nail had already voted when
Ross accosted him and, therefore, Ross' remarks
could not have affected his vote. Second, the state-
ment was totally unrelated to the election or its out-
come5 but, rather, was personal in nature-uttered
because Ross believed that Nail had called one of the
Petitioner's agents a liar. Third, almost immediately
after Ross made the remark to Nail-in the presence
of union organizer Brewer-the latter assured Nail
that Ross' remark was not intended as a threat. Thus,
the brunt of Ross' remarks was promptly blunted by
the Petitioner. Finally, although Nail told several em-
ployees who had not yet voted about Ross' remarks
to him, there is no basis for inferring that this could
reasonably have affected the outcome of the election.
Indeed, it is reasonable to assume that employees
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The revised tally was 10 for. and 10 against. the
Petitioner; there were 3 challenged ballots.
2 The Employer and the Petitioner excepted to certain credibility resolu-
tions made by the Hearing Officer. It is the established policy of the Board
not to reverse a hearing officer's credibility resolutions, when they are based
on his observation of the demeanor of witnesses as they testify at the hearing.
unless the clear preponderance of all the relevant evidence convinces us that
the resolutions are incorrect. The Coca-Cola Bottling Company of MenWhis,
132 NLRB 481, 483 (1961); Stretch-Tex Co., 118 NLRB 1359, 1361 (1957).
We have carefully examined the record in this case and see no basis to
reverse the Hearing Officer's credibility resolutions.
3In the absence of exceptions thereto. we adopt pro forma the Hearing
Officer's recommendation that the Petitioner's Objection 5 be overruled and
the Employer's request to withdraw its Objection 10 be approved.
'At a meeting with five employees I or 2 days before the election. Nail
disputed certain assertions made by union organizer Woodward. On the day
of the election, after Nail had voted, Ross told Nail that anyone who calls a
"brother" a liar had better not go out drinking alone.
5See Hickory Springs Manufacturing Company. 239 NLRB 641 (1978).
who heard about the so-called threat would be more
likely to vote against, rather than for, the Petitioner.6
Thus, it cannot be said that the Petitioner benefited in
any way from Ross' action. In all these circum-
stances, we do not believe that Ross' statement war-
rants setting the election aside, and we agree with the
Hearing Officer's recommendation that the Employ-
er's Objection 4 be overruled.
DIRECTION
It is hereby directed that the Regional Director for
Region 28 shall, pursuant to the Board's Rules and
Regulations, Series 8, as amended, within 10 days
from the date of this Decision and Direction, open
and count the ballots of Ernest McGrath and Robert
Lanning, and thereafter prepare and cause to be
served on the parties a revised tally of ballots, includ-
ing therein the count of such ballots, and, if said tally
indicates that the Petitioner was designated by a ma-
jority, issue a certification of representative. Should
the revised tally of ballots fail to disclose that the
Petitioner has been designated by a majority, the elec-
tion conducted on October 25, 1978, shall be set aside
and said Regional Director shall conduct a second
election at such time as he deems the circumstances
permit a free choice on the issue of representation.
MEMBER MURPHY, dissenting in part:
A high-ranking union official threatened an em-
ployee on the election day with physical harm be-
cause of the employee's statements in conflict with
the Union's position during the campaign. Despite
the obvious coercive impact of the statements on unit
employees who had not voted, my colleagues refuse
to sustain the objection, the Employer's Objection 4.
In doing so my colleagues indicate that all union
threats are by their nature unobjectionable in that
they are likely to persuade voters against the union. I
strongly disagree with their conclusion and must
therefore dissent.
In this objection the Employer alleged that on the
election day an agent of the Union told an employee
leaving the polling area that anyone who calls a
"brother" a liar better not go out drinking alone.
According to the credited testimony, agents of the
Union met with five employees I or 2 days prior to
the election. One of the agents, Daniel Woodward,
told the employees that if the Union won the election
all the employees would be admitted into the Union
either as journeymen or apprentices, regardless of
their age. Employee James Nail, who had previously
applied for membership in the Union and was re-
jected, indicated to Woodward that he could not be-
lieve this statement or that it would be that easy to
"Ibid.
242 NLRB No. 91
633
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtain membership in the Union. Nail asked Wood-
ward for assurance in writing. Woodward indicated
that he could not do that.
On election day, Nail voted during the morning
polling session. As he was leaving the polling area
and proceeding to his car, Nail was approached by
James Brewer, an organizer for the Union. Brewer
told Nail that he wanted Nail to meet someone. Nail
accompanied Brewer to a nearby car. As Nail ap-
proached, Glynn Ross, the Union's business man-
ager, got out of the car and was introduced to Nail by
Brewer. Ross immediately started to Nail, "I hear
that you called one of my brothers a liar." Nail de-
nied calling anyone a liar. Ross then stated that he
had a policy that was taught to him long ago and that
he would pass it on to Nail-that anyone calling one
of his brothers a liar better not ever be caught out
drinking alone. Nail then asked Woodward, who was
seated in the car, "Don, did I actually call you a
liar?" Woodward nodded yes. Nail again denied that
he had called Woodward a liar, stating that he may
have disagreed with him or found what he had stated
hard to believe. Ross then asked Nail some unrelated
questions and concluded the conversation by telling
Nail that he would be talking to him in a couple of
weeks.
Nail returned to his car to await the return of an-
other individual who was still in the polling area.
Brewer approached Nail and told him, "I hope you
didn't think that what just took place was a threat. I
kind of think you took it that way and we didn't
mean it to be that way." Nail answered that he did
take the statement to be a threat. Thereafter, Nail
returned to the Employer's jobsite and related the in-
cident to several employees who had yet to vote.
The Hearing Officer found that, because the threat
was made "in the heat of battle" and Brewer after-
ward informed Nail that the statement was not in-
tended as a threat, the incident was insufficient to
constitute objectionable conduct. I cannot agree.
The Board has long held that statements made to
employees by union representatives which are reason-
ably calculated to interfere with the employees' exer-
cise of freedom of choice exceed the permissible
bounds of preelection activities. G. H. Hess, Incorpo-
rated, 82 NLRB 463 (1949); Professional Research,
Inc., d/bla Westside Hospital, 218 NLRB 96 (1975).
Here, the statement by Ross, an important and high-
ranking union official, was directly related to Nail's
perceived antiunion activities during the campaign
and hence the election, and would tend to cause the
employees who had not yet voted to assume that the
Union was willing to physically harm any employee
who opposed it or voted against it in the election.
Furthermore, the coercive impact of the threat was
not dissipated by Brewer's "assurance" that it was not
intended as a threat. Indeed, the fact that Brewer
found it necessary to attempt to assure Nail that Ross
had not meant what he said not only belies the very
assurance made, but also shows that the three union
representatives 7 were fully aware that Ross' statement
was threatening and that it correctly would be inter-
preted by Nail (or any other employee) as such. In
these circumstances, Brewer's so-called assurance
that no threat was intended is as ludicrous as if
Brewer had tried to tell Nail that Ross really had
meant to wish him well. Consequently, the majority's
finding to the same effect has no more substance in
reality than Brewer's clumsily contrived assurance.
Moreover, it is significant that Ross, himself, made
no attempt personally to retract the threat or dispel
its thrust. Instead, he appears to have resorted to the
rather transparent and ineffective ploy of sending
Brewer, one of his "lieutenants," purportedly to make
amends. But as noted, Brewer's "assurance" did not
constitute a meaningful retraction of the threat but
was, at best, merely a perfunctory attempt to lessen
its coercive effect and, at worst, a mockery of the
message it ostensibly conveyed. In any event, the pro-
spective voters to whom the facts concerning the
threat were disseminated were well aware that Nail
had spoken out in the meeting with Woodward to
dispute one of the Union's key campaign promises,
and, thus, that the threat was directly related to both
that event and promise. The harsh message carried by
the threat thus was clear to them: Oppose the Union
and suffer possible physical harm. And coming to
their attention as it did just before they voted, it
would have tended to have had the greatest coercive
restraint imaginable on their exercising their free
choice in the election.
Rejecting this analysis, my colleagues have appar-
ently entered into a new era in which unions are now
free to make any and all threats without fear that any
election which the union wins will be set aside. Thus,
in Hickory Springs, 239 NLRB 641, they refused, over
my protest, to set aside an election on the ground that
the threats "neither relate to events surrounding or
concerning the election nor were they calculated to
coerce employees to vote for the Petitioner." Here the
threat unquestionably related to events surrounding
the election-the election campaign-so now my col-
leagues conclude that that does not matter since the
threat was "personal in nature" (are not all threats?)
and thus "unrelated to the election or its outcome
... "a conclusion which is beyond reason in light of
the circumstances here.
If that were not enough, my colleagues then go on
to strongly suggest that even if they viewed the
' Ross, Brewer, and Woodward. In considering the likely impact of the
threat, I also deem it significant that three of the Union's representatives
were involved in the incident.
634
KMS CORPORATION
threats as related to the election or its outcome they
would not set the election aside. Thus, they find that
those who heard the "threat would be more likely to
vote against, rather than for, the Petitioner," citing
Hickory Springs. My colleagues thus clearly state that
union threats cannot be said to affect an election in
favor of the union since the normal reaction of voters
faced with such threats would be to vote against the
union. Presumably, in their view, the stronger the
threat the more likely that this would be the result.
Thus, unions now apparently have a free hand to
threaten voters in any way they wish. After all, ac-
cording to currently "fashionable view" prevailing at
the Board, the likely result will be that the employees
will vote against the union and therefore such threats
cannot affect the outcome. Quite frankly I am as-
tounded, and in fact shocked, by this approach to our
elections. It may be that some voters may vote
against the union following the threats. It is also quite
likely that some voters out of fear of reprisal will vote
for the union. The same can be said with respect to
threats made by employers. One thing, however, is
clear: It is impossible to know with any certainty how
many will vote which way as a result of the threat.
But it safely can be said that voters will be affected by
the threat, and where the party making the threat
ends up having its position sustained by the voters
there is at least a strong possibility that that was the
reason. In the past the Board has set elections aside in
these circumstances rather than engage in any unwar-
ranted speculation. I would continue to do so. Ac-
cordingly, I would sustain the Employer's Objection
4.
Inasmuch as I find that the Employer's Objection 4
is meritorious, and concur with my colleagues that
Petitioner's Objections 6, 7, and 8 also are meritori-
ous, I would set aside the election and direct a second
election.s
I Since I would set the election aside regardless of its outcome. I find it
unnecessary to determine the merit of the challenges to the ballots of Ernest
McGrath, Robert Lanning, and Doug Pasquan.
635