Smithers Tire

National Labor Relations Board - Board Decisions

Jul 30, 1992

308 N.L.R.B. 72 (N.L.R.B. 1992)

72
308 NLRB No. 12
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 preponder-
ance 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. In the absence of exceptions, we adopt,
pro forma, the hearing officer’s recommendations to overrule all ob-
jections except 2(c), and 1, 2(g), and 2(i) insofar as these relate to
the Barfield-Rodriguez incidents described below.
2 With respect to the alleged threat to employee Gober, we note
that even if it were construed as an economic threat, it was not with-
in the Union’s power to fulfill. See Allis Chalmers Co., 278 NLRB
561, 563 (1986).
3 No exceptions have been taken to this finding. We adopt it pro
forma.
4 Contreras in general denied making any threats but he did not
deny this incident or making such a statement to Sanchez.
Smithers Tire and Automotive Testing of Texas,
Inc., and its Labor Contractors, Joint Employ-
ers and International Union of United Rubber,
Cork, Linoleum and Plastic Workers of Amer-
ica, AFL–CIO, Petitioner. Case 16–RC–9383
July 30, 1992
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held April 25, 1991, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 57 for and 54 against
the Petitioner, with no challenged ballots, an insuffi-
cient number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief, and has adopted the hearing offi-
cer’s findings1 and recommendations only to the extent
consistent with this Decision and Direction of Second
Election.2
Contrary to the hearing officer, we find that a re-
mark by employee Pilar Contreras, who the hearing of-
ficer found was an agent of the Union,3 and remarks
by employees Robert and Manual Rodriguez, con-
stituted threats which, in the circumstances presented
here, require that the election be set aside and a new
election be held.
The credited testimony establishes that Contreras, on
observing employee Fernando Sanchez with a black
eye, remarked, ‘‘This is what happens when you cross
us.’’ This remark was made to Sanchez at the dispatch
window in the presence of Supervisor Randy
McWhirter, who just before had asked Sanchez about
his eye. McWhirter, whose testimony regarding the in-
cident was credited,4 also testified that people were al-
ways near the place where the remark was made.
The hearing officer found that the statement was so
ambiguous as to not amount to a threat of retaliation.
In this regard, he noted that Sanchez did not testify
and that Contreras was not asked about the state-
ment—for example, who was referred to by ‘‘us’’ or
whether the remark was made in a joking manner.
We disagree with the hearing officer. In this regard,
we begin with the familiar rule that the test to be ap-
plied is whether a remark can reasonably be interpreted
by an employee as a threat. The test is not the actual
intent of the speaker or the actual effect on the lis-
tener. Under this test, it would be reasonable for an
employee to conclude that the word ‘‘us,’’ spoken by
Contreras, was a reference to the Union. Contreras was
an agent of the Union, and the employees regarded
him as such. He was the in-plant organizer and spokes-
man for the Union. Consequently, when Contreras told
Sanchez that ‘‘this is what happpens when you cross
us,’’ Sanchez could reasonably regard ‘‘us’’ as refer-
ring to the Union. Further, since the remark was made
in reference to Sanchez’ black eye, Sanchez could rea-
sonably interpret the remark to mean that ‘‘black
eyes’’ befall those who ‘‘cross’’ the Union.
Our dissenting colleague argues that the remark was
ambiguous, was made in jest, and was a spontaneous
reaction to Sanchez’ black eye. We disagree on all
three counts. With respect to ambiguity, we need not
parse the remark to ascertain what it really meant. As
discussed above, suffice it to say that it could reason-
ably be regarded as a threat. With respect to our col-
leagues’ contention that the remark was made in jest,
we note that this suggestion is pure speculation and is
counterintuitive. Contreras, who was called to testify,
did not offer this explanation. Our colleague therefore
attributes to Contreras an explanation that he himself
did not give. Further, we recognize that a black eye
may make the possessor the subject of some jest, but
in our experience the jokes unsually relate to how the
person in question got the black eye. Whether in good
humor or bad, a person attempting to make a joke
about another’s black eye does not threaten him with
future physical harm if he does not conform to a par-
ticular point of view. Finally, were are not persuaded
by our dissenting colleague’s reliance on the alleged
‘‘spontaneity of Contreras’ remark. Employees know
that ‘‘spontaneous’’ remarks from union agents may in
fact carry as ominous a message as formal comments.
In all of these circumstances, this statement would rea-
sonably tend to interfere with employee free choice.
The credited testimony also establishes that, shortly
before the election, employees Robert and Manual
Rodriguez separately threatened to flatten the tires of
employee Angela Barfield’s automobile if she voted
against the Union, and told her that others would know
how she voted. The hearing officer, citing Westwood
Horizons Hotel, 270 NLRB 802, 803 (1984), found
73SMITHERS TIRE
5 See Buedel Food Products Co., 300 NLRB 638 (1990), which
involved one employee’s threat to burn another employee’s car if
she did not vote for the petitioner.
6 Ibid. 1 Cf. M. K. Morse Co., 302 NLRB 924, 925 (1991).
that the two remarks to one employee in a unit of 123
eligible voters, with no indication of dissemination to
other employees, did not meet the test for setting aside
elections based on third party conduct, i.e., the conduct
did not ‘‘create a general atmosphere of fear of reprisal
rendering a free election impossible.’’
Contrary to the hearing officer, we find it immaterial
that the Rodriguezes’ threats to flatten Barfield’s tires
did not go beyond her. In this regard, we note that her
vote, along with that of Sanchez, could reverse the out-
come of the election. The threats were obviously in-
tended to influence Barfield’s vote and the threats inti-
mated a substantial harm.5 Threats to damage an auto-
mobile have a particular significance here where the
record shows that the Employer’s workplace is isolated
and the employees need their cars to go to work. As
Barfield testified, her car ‘‘is not the greatest thing, but
it’s all I have.’’
In light of the foregoing, we must consider that at
least two votes, Sanchez’ and Barfield’s, could have
been influenced by the remarks of Contreras and the
Rodriguezes’ threat. Where, as here, the votes of the
two threatened employees could be determinative of
the election, there is a substantial question whether the
tally in favor of the Petitioner reflected the free choice
of a majority of the employees.6
We shall therefore set aside the election and direct
that a second election be held.
[Direction of Second Election omitted from publica-
tion.]
CHAIRMAN STEPHENS, dissenting.
I disagree with my colleagues that the so-called
black eye incident and the third-party threats to flatten
tires on Barfield’s automobile (threats not shown to
have been disseminated to employees other than
Barfield) warrant setting aside the election.
My conclusion regarding the allusion to the black
eye turns on the ambiguous nature of the remark and
the circumstances in which it was made. The record
shows that Supervisor McWhirter observed employee
Sanchez’ black eye when Sanchez was picking up his
timecard at the dispatch window. McWhirter asked
Sanchez about the black eye but before Sanchez could
respond Union Agent Contreras interjected, ‘‘This is
what happens when you cross us.’’
In evaluating Contreras’ remark I would note first
that there is no indication that Contreras or the Union
were involved in Sanchez’ black eye. Sanchez did not
testify and the record is devoid of any evidence of the
cause of his black eye. Nor for that matter, does the
record show that Sanchez did not support the Union at
the time of the incident.
It also must be kept in mind that the incident did
not arise as a result of Contreras taking the initiative
to approach Sanchez or threaten him personally. Rath-
er, Contreras’ remark was prompted by Supervisor
McWhirter’s question to Sanchez. I believe it signifi-
cant that Supervisor McWhirter, in whose presence the
remark was made, gave no indication at the time of the
remark that he viewed it as a threat, nor is there evi-
dence that he took any disciplinary action against
Contreras. Perhaps this can be explained by the ambig-
uous nature of the remark and McWhirter’s recognition
of its ambiguity at the time, given the circumstances
in which it was made. Although there was no testi-
mony that the remark was, or was not made, in a jok-
ing manner, the fact that it was prompted spontane-
ously by McWhirter’s question to Sanchez about his
eye while Contreras happened to be present, strongly
suggests that Contreras uttered the remark as a quip or
smart aleck comment that was not intended to be taken
seriously, and that McWhirter at the time took it that
way. In any event, a reasonable employee would be
just as likely, if not more so, to view the apparent ref-
erence to his black eye as a spur-of-the-moment jest as
he would to take it as a threat that the Union was plan-
ning to embark on a campaign of beating up antiunion
employees.
Accordingly, because of the remark’s ambiguity and
the context in which it occurred,1 coupled with the ab-
sence of any credited testimony which might help es-
tablish its real meaning, such as threatening remarks or
conduct by Contreras, I am persuaded that Union
Agent Contreras’ remark does not rise to the level of
a threat, and thus, that it provides no basis for setting
the election aside.
Nor would I find that the two threats to flatten the
tires of employee Barfield’s automobile created a gen-
eral atmosphere of fear and reprisal sufficient to war-
rant invalidating the election. Duralam, Inc., 284
NLRB 1419 (1987). These threats constituted the sole
extent of aggravated third-party conduct occurring dur-
ing the critical preelection period. The threat by Robert
Rodriguez occurred 2 weeks before the election. The
threat by Manuel Rodriguez occurred 1 week before
the election. The hearing officer found that there was
no evidence that these threats to Barfield were dissemi-
nated to the 122 other eligible voters in the unit. Thus,
despite the objectionable nature of the threats, the
threats were isolated and could only have had a tend-
ency to influence the vote of Barfield. Because the
tally of ballots shows a three-vote margin in favor of
the Union, however, Barfield’s vote could not be deter-
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Thus, although I share my colleagues’ concern about elections in
which it is established that threats have been shown to have affected
voters whose ballots would be determinative, this case does not, in
my view, present that situation. Cf. Buedel Food Products, 300
NLRB 638 (1990).
minative. In these circumstances, the Rodriguezes’
conduct does not warrant setting aside the election.2
Accordingly, I would adopt the hearing officer’s rec-
ommendations to overrule the Employer’s objections
and to certify the Union as the exclusive representative
of the unit employees.