PPG Industries

PPG INDUSTRIES 350 NLRB No. 25 225 PPG Industries, Inc. and International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America, UAW. Case 25– RC–10347 July 3, 2007 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND KIRSANOW The National Labor Relations Board, by a three- member panel, has considered objections to an election held June 28, 2006, and the hearing officer’s report rec- ommending disposition of them. The election was con- ducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 186 for and 158 against the Peti- tioner, with 9 challenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the ex- ceptions and briefs,1 and has decided to adopt the hearing officer’s findings2 and recommendations only to the ex- tent consistent with this Decision and Direction of Sec- ond Election. Background The Employer filed a number of timely objections to the election. The Employer alleged, among other things, that several union supporters, including members of the employee-comprised voluntary organizing committee (VOC), acting as agents of the Union, made threats of physical harm and property damage to various employ- ees. The hearing officer found that, throughout the month preceding the election, the union supporters made a number of statements to unit employees threatening physical harm and property damage if employees were to cross a picket line and that these statements were dis- seminated to numerous other employees. The hearing officer found that the union supporters did not act as agents of the Union and thus applied the Board’s stan- dard for evaluating third-party conduct. He concluded that the threatening statements did not create a general atmosphere of fear and reprisal and therefore recom- 1 We deny the Employer’s motion to strike the Union’s posthearing brief because it exceeded the 50-page limit set forth in Sec. 102.69(j)(1) of the Board’s Rules and Regulations. That section applies to “docu- ments filed with the Board” and does not cover posthearing briefs filed with a hearing officer. 2 The Employer has excepted to some of the hearing officer’s credi- bility determinations. 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. mended that all of the Employer’s objections involving threats be overruled.3 The Employer excepts to the hearing officer’s find- ings, contending that the VOC members and other union supporters acted as union agents and that their threats warrant setting aside the election under the Board’s stan- dard for evaluating party conduct. Alternatively, the Employer contends that even if the VOC members and other union supporters did not act as agents of the Union, the election should be set aside under the third-party standard. For the reasons set forth below, we set aside the elec- tion and direct a second election. In doing so, we need not decide whether the union supporters, including the VOC members, acted as union agents. Even assuming they were not union agents, we find merit in the Em- ployer’s argument that the election should be set aside under the standard governing third-party conduct. Facts The record demonstrates that employees discussed the likelihood of strikes and picket lines in the event of un- ionization throughout the organizing campaign. In addi- tion, the hearing officer’s factual findings with regard to Objections 1, 2, 3, 4, 7, and 9 establish that, over the course of the campaign, members of the VOC and other union supporters made numerous threatening statements concerning what would happen to employees who would, or would be inclined to, cross a picket line. For example, 1 month before the election, employee Dave Nosko made statements on a number of occasions that he “feel[s] very sorry for anyone who crosses our picket line because we will break out your windshield, slash your tires, stone your f—ing car, [and] kick you[r] ass.” Similarly, Nosko and employee Terry Hall stated that “they would slash the tires of [employee Jennifer Williams] because she looked like the type that would cross the picket line.”4 Also in the month before the election, employee Ron Kimmel noted that the Employer might bus employees across a picket line and told a group of female employ- ees, including bargaining-unit employees Charlotte Schmitt, Elaine Thompson, and Debbie East, “I don’t want you getting hurt, but you would want to sit in the middle of the bus.” Three weeks before the election, in response to employee Dave Williams’ statement that he would cross a picket line, employee Brett Johnson refer- enced a backhoe and said several employees “could dig a 3 The Employer does not except to the hearing officer’s recommen- dations that Objections 6, 12, and 15 be overruled. 4 The hearing officer did not make a finding regarding when this statement was made, but the record indicates that it was made about 3 weeks before the election. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 226 hole back there on the back of [another employee’s] property where nobody could find [Williams].” Ten days before the election, employee Roger Cole- man told employee Karen Sutton that he would physi- cally harm her and damage her vehicle if she crossed a picket line. Two days before the election, employee Jeff Birchler told his brother, employee Jerry Birchler, not to cross a picket line or “there would be big problems.” Several of the foregoing threats were disseminated to other unit employees. All told, a total of 29 employees either directly heard these threats or learned of them. Analysis Third-party threats rise to the level of objectionable conduct where they are “so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible.” Westwood Horizons Hotel, 270 NLRB 802, 803 (1984).5 In assessing the seriousness of such threats, the Board considers (1) the nature of the threat itself; (2) whether the threat encompassed the en- tire bargaining unit; (3) whether reports of the threat were widely disseminated within the unit; (4) whether the person making the threat was capable of carrying it out, and whether it is likely that the employees acted in fear of his capability of carrying out the threat; and (5) whether the threat was “rejuvenated” at or near the time of the election. Id. Applying these factors, the Board has found objectionable multiple threats of harm, physi- cal injury, and property damage against proemployer employees or employees who stated that they would cross a picket line. Robert Orr-Sysco Food Services, LLC, 338 NLRB 614, 615–616 (2002), enfd. mem. 184 Fed. Appx. 476 (2006); Picoma Industries, 296 NLRB 498, 500 (1989). The threatening statements at issue in Objections 1, 2, 3, 4, 7, and 9 were serious in nature, involving threats of bodily harm and property damage. The record reflects that the threat of serious consequences for employees who would not choose to support a union strike was a consistent theme throughout the election period and con- tinued in the days leading up to the election. The threats were not isolated, but rather directly involved seven em- ployees and were disseminated to at least 22 additional employees. Employee Nosko made a generalized threat of physical harm and property damage to any unit em- ployee who crossed a picket line. The remaining threats, 5 Member Kirsanow finds it unnecessary here to address the validity of the Westwood Horizons Hotel standard because, even assuming an objecting party in a third-party threat case ought to bear the burden of demonstrating a “general atmosphere of fear and reprisal,” he finds that the burden was met in this case. while addressed to specific employees, could reasonably cause any unit employee who would cross a picket line to fear the same serious consequences. See Picoma Indus- tries, supra at 499. Based on the foregoing and consistent with precedent, we find that this series of statements threatening physical harm and property damage to employees who crossed a picket line created a general atmosphere of fear and re- prisal that rendered free choice in the election impossi- ble. See Robert Orr-Sysco Food Services, supra at 615– 617; Marmon Group, Inc., 275 NLRB 652, 653 (1985). In doing so, we distinguish this case from Cal-West Pe- riodicals, 330 NLRB 599, 600 (2000), on which the Un- ion relies. In Cal-West, we found that a single conversa- tion containing two allegedly threatening statements, which were only heard by one individual, was insuffi- cient to create a general atmosphere of fear and reprisal that would warrant setting aside the election at issue. Id.; see also Robert Orr-Sysco Food Services, supra at 615– 616 (discussing the Board’s decision in Cal-West). Here, by contrast, the VOC members and other union support- ers made multiple statements threatening physical harm and property damage. The recurring and pervasive na- ture of these serious threats throughout the critical pe- riod, combined with their application to the entire bar- gaining unit and dissemination to numerous employees, created a general atmosphere of fear and reprisal that warrants the setting aside of the election.6 Conclusion We find that the series of threatening statements at is- sue in Objections 1, 2, 3, 4, 7, and 9 created a general atmosphere of fear and reprisal that rendered free choice in the election impossible. Accordingly, we set aside the election and direct a second election.7 [Direction of Second Election omitted from publica- tion.] 6 Chairman Battista and Member Schaumber agree that the extant formulation of the “third-party” standard has been satisfied. Accord- ingly, they do not apply their more stringent test, i.e., where third-party misconduct affects a determinative number of voters, it warrants setting aside the election. See, e.g., Accubuilt, Inc., 340 NLRB 1337, 1339 fn. 6 (2003). In any event, because the misconduct affected 29 unit em- ployees, a determinative number, the election would be set aside under that test. 7 As we have set aside the election on these grounds, we find it un- necessary to pass on the hearing officer’s recommendations to overrule Objections 5, 8, 10, 11, 13, 14, 16, 17, 19, 20, and 21.