275 N.L.R.B. 652 (N.L.R.B. 1985)

Long Airdox Co.

National Labor Relations Board - Board DecisionsMay 31, 1985

275 N.L.R.B. 652 (N.L.R.B. 1985)

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Marmon Group , Inc., a Division of Long Airdox Company and Oil, Chemical and Atomic Work- ers Union , AFL-CIO, Petitioner. Case 5-RC- 11800 31 May 1985 DECISION, ORDER, 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 -22 July 1982 and the hearing officer's report and recommenda- tions on the objections. The. Board has reviewed the record in light of the exceptions and briefs, and adopts the hearing officer's findings and recom- mendations. only to the extent consistent with this decision. The hearing -officer considered the- Employer's objections alleging that the Petitioner's organizers made threats of physical harm and property damage against various employees. The hearing of- ficer found that numerous threats were made by employees who were not agents of the Union. He concluded, however, that the threats were insuffi- cient to create a general atmosphere of fear and re- prisal such that a free and fair election could not be held. We disagree and find that the conduct at issue deprived the employees of a free expression of choice. Accordingly we will direct a second election. - The hearing officer found that the following conduct occurred. Two weeks before the election employee Stuart Gunsaulis, accompanied by em- ployee James Wright, approached coworker Johnny Surratt in a public parking lot and asked Surratt if he supported the Union. Following Sur- ratt's noncommittal response, Gunsaulis stated, "You have . . . nice tires . . . you wouldn't want them cut, would you?" and "Somebody is liable to drive by your house one of these nights and throw a bomb." Surratt testified that he discussed the in- cident with a supervisor but did not tell any em- ployees. Two to three weeks before the election, at the Employer's facility, employee Roger Parnell told employee Surratt that, if he did not vote for the Union, the Union could get rough, and that if he- tried to work during a strike, "they could make it real hard on you. Surratt testified that two other employees were present, but he did not mention ' The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election The tally was 63 for and 48 against the Oil, Chemical and Atomic Workers Union, there were 4 challenged ballots, a number insufficient to affect the results the remark to anyone else. Also 2 to 3 weeks before the election, in the employees' lunchroom, employee Robert Frost told employee James Al- derman that-during a strike at another plant some vehicles had been burned. Frost stated that Alder- man's vehicle probably would have been burned, too. Alderman testified that no other employees were close enough to overhear the remark, and that he mentioned it only to a supervisor. - Two weeks before the election employee Larry Stanley wore a T-shirt to work with "Hell no, Union Vote No" imprinted on it. Employee Buddy Hash approached Stanley and advised' h im "not to wear it because . . . you might just get paid a visit to your home." Just before the election Hash went to Stanley's home and tried unsuccessfully to per- suade Stanley to sign an authorization card. There was no testimony on possible dissemination of this incident. Two or three weeks before the election employ- ee Eugene Huff overheard a conversation among employees Gunsaulis, Triplett, and Wright outside the Employer's building. Huff heard one employee say if they "got the Union in, that there would be a strike and that if anybody crossed the picket line could [sic] get hurt," and that "if anybody went to work they would stomp their ass, and if they were. . not at work, they would go to their homes." Huff testified that he did not discuss the incident with anyone, but that two part-time employees may have overheard the remarks. Finally, about a month before the election em- ployee Triplett approached employee Timothy Coble , and told Coble "if I didn't vote yes for the Union that I would be stomped . . . he knowed [sic] where I lived, that they would try to get me, that they wouldn't have to get me at the plant, that they would get me at the house." Coble did not discuss this with any employees, but did tell a su- pervisor. On the day of the election while Coble was waiting in line to vote, Triplett was bumped by employees engaged in horseplay, and as a con- sequence brushed against Coble. The Employer contends that the individuals who made these remarks are union agents. The hearing officer found that several employees identified these individuals as union supporters. In addition, employee Triplett solicited signatures on authoriza- tion cards, attended union meetings, and distributed literature. None of the alleged agents were mem- bers of the in-plant organizing -committee created by the Petitioner. It is the responsibility of the Board during a rep- resentation election to provide "a laboratory in which an experiment can be conducted, under con- 275 NLRB No. 94 MARMON GROUP, INC ditions as nearly ideal as possible."2 If the employ- ees' free choice is imperiled by an atmosphere of fear and coercion, the Board must set aside the election. 3 We find that these threats, when viewed cumula- tively, created an atmosphere in which a fair elec- tion could not be conducted. We note that the threats were not isolated, with five individuals di- rectly affected and evidence of dissemination to' several others. We also note the serious and aggra- vated nature of the threats, including threats of bodily harm,4 of house bombing, and of property damage. Accordingly, we find that the election did not reflect a free expression of choice by these em- ployees, and we shall order a new election. ORDER It is ordered that the election in this case con- ducted on 22 July 1982 is set aside. [Direction of Second Election omitted from, pub- lication.] - MEMBER DENNIS, dissenting. Contrary to the majority, I agree with the hear- ing officer that the Employer's objections should be overruled and the Union certified as the' em- ployees' bargaining representative. z General Shoe Corp, 77 NLRB 124, 127 (1948) Because we are setting aside the election under a third party stand- ard, we find i t unnecessary to pass on the hearing officer's discussion of union agency 4 The Board does not consider -lightly threats of bodily harm, even when addressed to one employee See Steak House Meat Co, 206 NLRB 28 (1973) Contrary to our dissenting colleague's assertion we have neither ap- plied artificial standards to a Board-conducted election nor failed to ap- praise this election realistically and practically gather, our disagreement is factual and we find our dissenting colleague's characterizations of our decision to be unnecessary and disingenuous 653 The hearing officer properly found that the em- ployees charged with engaging in objectionable conduct were not union agents,' and -the majority does not reverse that -finding. Accordingly, the case must be analyzed under the Board's third- party standard of whether the employee conduct "created an atmosphere rendering a free election impossible." Orleans Manufacturing Co., 120 NLRB 630, 634 (1958). The majority relies on six incidents of allegedly objectionable conduct, including employee Rogert Parnell's remarks to employee Johnny Surratt that the union could "get rough" if Surratt did not-vote for it, and `make it real hard" -on.him if he tried to work during a strike. Because both remarks are ambiguous and do not rise to the level of threats, the hearing officer properly discounted them. Like the hearing officer, I find nothing coercive in em ployee Robert Frost's statement to employee James Alderman' that, during an unidentified strike "up north," vehicles ,had been burned and Alderman's vehicle probably would have been burned too. The remaining incidents involved threats to only four unit employees, who did not disseminate them, and the Union won the election 63 to 48, with 4 challenged ballots. Although I do not - cgndone threats, the conduct in issue here was simply too isolated to create " a general "atmosphere rendering a free election impossible." Orleans Manufacturing Co., supra. Regrettably, the majority forgets that "Board elections do not occur in a laboratory" and that "elections must be appraised realistically and practically, and should not be judged against theo-. retically ideal, but, nevertheless artificial, stand- ards." Liberal Market, 108 NLRB 1481,: 1482 (1954): Accordingly, I' would adopt the.hearing of=' fiver's 'recommendations to overrule the objections and certify the Union.