Sequatchie Valley Coal Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 726 (N.L.R.B. 1986)

726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sequatchie Valley Coal Corporation and United
Mine Workers of America, Petitioner . Case 10-
RC-13201
30 September 1986
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, AND STEPHENS
The National Labor Relations Board has consid-
ered objections to an election' held 25 October
1985 and the hearing officer's report recommend-
ing disposition of them. The Board has reviewed
the record in light of the exceptions and briefs, and
adopts the hearing officer's fmdings2 and recom-
mendations to the extent consistent with this deci-
sion.
Employer's Objection 1 alleged that agents and
supporters of the Union threatened voters with vio-
lence if they did not support the Union. The hear-
ing officer found that threatening statements were
made by employees who were not agents of the
Union. Analyzing the threats as third-party con-
duct, the hearing officer found that these threats
did not coerce employees' free choice in the elec-
tion. The Employer did not except to the failure to
find agency status but did except to the failure to
find coercion. We find merit in this exception.
Employee Ronald Smith testified that, before the
petition was filed, union supporter Donnie Seals
told Smith, in the presence of a third employee,
that if Smith did not support the Union, Seals
would "burn him out."3 A couple of days later,
i The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election . The tally was 31 for and 19 against the
United Mine Workers of America, there were 2 challenged ballots, a
number insufficient to affect the result
2 The Employer has excepted to some of the hearing officer's credibil-
ity findings The Board 's established policy is not to overrule a hearing
officer's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect Stretch-Tex Co,
118 NLRB 1359 , 1361 (1957) We find no basis for reversing the findings
except as noted in fn 3.
S The Employer excepted to the hearing officer's apparent discrediting
of Smith regarding to Seals' threat to Smith The Employer pointed out
that the basis for the apparent discrediting was a perceived contradiction
within Smith's testimony regarding when Smith thought Seals was seri-
ous about the threat The Employer further noted that there was no con-
tradiction in Smith 's testimony regarding the making of the threat and
there was no denial that the threat was made Finally, the Employer
pointed out that the hearing officer, later in her report, treated the threat
as having been made We find it unnecessary to resolve the ambiguity
inasmuch as it is clear that, whether or not it was actually made, the
threat was discussed among employees during the critical period
Smith's wife informed him that she had heard from
neighbors that Seals had been to the neighbors'
house bragging about burning the Smiths out.
Starting about 1 week after the threat and until the
date of the election Smith talked with six named
and other unnamed employees about Seals' threat.
About 1 month before the election, Smith talked
to employee Alvin Lewis who had earlier asked
Smith to sign a union authorization card. Lewis
asked Smith if he had decided to go for the Union.
Smith said "no." Lewis replied that Smith had
better hurry up and make up his mind before they
"sicked" Seals on him.
About 2 or 3 weeks before the election, Smith
talked to employee Bill Wyatt who had also asked
Smith to sign an authorization card. Wyatt said
that if the Union did not get a contract within 2 or
3 months they were going to strike. Smith said he
thought people would still go to work. Wyatt said
that "that's when the killing would start." Smith
asked Wyatt if he would kill a man over something
like that. Wyatt answered that "he wouldn't have
to, that the Union people have people in the woods
to do that."
During the week before the election employee
Buster Troglin told Smith that employee John
Wilson had planned to have a meeting against the
Union the following day but "we put a stop to it."
Troglin told Smith that if Wilson had the meeting,
"either George [an employee] would have shot him
or Preacher [another employee] would have
grabbed him and choked the life out of him."
Smith told another employee about this conversa-
tion.
The Board has the responsibility in representa-
tion elections to provide a "laboratory in which an
experiment can be conducted, under conditions as
nearly ideal as possible." General Shoe Corp., 77
NLRB 124, 127 (1948). If an atmosphere of fear
and coercion interferes with employees' free
choice, the Board must set aside the election.
Here, a series of serious threats were made
throughout the election period and disseminated
among a significant number of employees. Further,
the threats were of an extremely serious nature, in-
cluding threats of killing and bodily harm, which
the Board does not take lightly even when made to
one employee. See Steak House Meat Co., 206
NLRB 28 (1973). We find that the cumulative
effect of the threats created an atmosphere of fear
and coercion, which precluded a fair election.
Marmon Group, Inc., 275 NLRB 652 (1985),
281 NLRB No. 108
SEQUATCHIE VALLEY COAL CORP. 727
Westwood Horizons Hotel, 270 NLRB 802 (1984).4
Accordingly , we shall order a new election.5
ORDER
It is ordered that the election in this case con-
ducted on 25 October 1985 is set aside.
[Direction of Second Election omitted from pub-
lication.]
CHAIRMAN DOTSON, concurring.
I concur in setting aside the election here, for
the same reason that I would have set aside the
elections in Avis Rent-A-Car System, 280 NLRB 580
(1986), and John M. Horn Lumber Co., 280 NLRB
593 (1986). Although my colleagues obviously be-
lieve otherwise, I find no tenable basis for a mean-
ingful distinction between the campaign violence
and threats at issue in those cases and the conduct
found objectionable here. Factual distinctions may
indeed exist, but in each case the actions attributa-
ble to prounion forces were sufficiently opprobri-
ous and disruptive as to warrant nullification of the
election results.
The Board's interpretation and application of the
Act often requires "the drawing of lines more nice
4 Because the threats here were directed at a unit employee and direct-
ly concerned his sentiments respecting the election , this case is distin-
guishable from Avis Rent-A-Car System, 280 NLRB 580 (1986), where the
incidents of alleged violence arose in the context of a strike by members
of a unit other than the one in which the election was conducted and
knowledge of them was not shown to have been generally disseminated
among the prospective voters . This case is also distinguishable from John
M. Horn Lumber Co., 280 NLRB 593 (1986), which concerned only two
incidents-one in which the threat was not linked in any way to the elec-
tion and the other occurring several weeks before the election and in-
volving language and conduct of a sort shown not to be uncommon in
that plant.
e Because we are setting aside the election based on Employer Objec-
tion 1, we find it unnecessary to pass on the hearing officer 's findings re-
garding Employer Objection 3.
than obvious ."" This does not mean , however, that
the Board can abjure the clear and obvious line of
distinction between lawful and unlawful conduct
when it will best effectuate the Act . The majority's
preference for the "nice" over the "obvious" in
Avis Rent-A-Car, Horn Lumber, and this case repre-
sents an abdication of the Board 's statutory man-
date.
As I have emphasized in my dissenting opinions
in the two previous cases , it is the Board 's statuto-
ry duty to establish norms that strongly discourage
labor relations violence . The setting of such norms
is not furthered by making esoteric and unpredict-
able factual distinctions on a case -by-case basis.
This merely fosters brinkmanship on the part of
those who would usurp employee free choice
through intimidation and violence . In addition, the
Board 's decisional waffling on campaign violence
promotes a general lack of deference for our con-
duct of representation elections upon review by the
Federal courts of appeals , whose hard line of oppo-
sition to violence is unmistakable . E.g., NLRB v. A.
Duie Pyle, Inc., 730 F.2d 119, 124 (3d Cir. 1984).
Consequently, the failure to articulate a clear and
consistent standard against violence tends to im-
peach the Board 's credibility and to diminish its
usefulness to both its constituency and the courts.
In light of the foregoing , I concur in the result
reached in this case , but I do not join my col-
leagues' attempts to rationalize their failure to
reach the same result in Avis Rent-A-Car and Horn
Lumber. Applying the proper standard of strict
sanction against labor relations violence , whether
prounion or antiunion , I would have set aside the
election in all cases.
i Electrical Workers IUE Local 761 (General Electric) P. NLRB, 366
U.S. 667 , 674 (1961).