Seaward International, Inc.

940 SEAWARD INTERNATIONAL Seaward ' International, Inc. and District Lodge 186 of the International Association of Machinists and Aerospace Workers, AFL-CIO, Petitioner. -Case 5-RC-11608 - 28 -June 1985 SUPPLEMENTAL DECISION 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 25 September 08r; and the.-hearing officer's report recommend-' ing disposition of them. The election was conducted pursuant to a Stipu- lated Election Agreement. i The ' tally of ballots. shows 15 for, and 9 against, the Petitioner, with 6 challenged ballots,- a .number sufficient to affect the results. l The Board has reviewed the record in light of the exceptions and brief and adopts the hearing of- ficer's findings2 and recommendations, only to the extent consistent with this supplemental decision. Objection 1 alleged that prounion supporters en- gaged in threats and acts of violence which created a-coercive atmosphere and interfered with the em- ployees' free choice in the election. More specifi- cally, the Employer alleged, inter alia, that employ- ee Wiltshire was sprayed in the face with a chemi- cal by a prounion employee because of Wiltshire's neutral position regarding the Union; that employ- ee Cooper was informed that he would be the next employee to be sprayed; and that, following an ar- gument during which employee Penwell refused to wear a union hat proffered by employee union sup- porter Terry Smith, Penwell was confronted in the Employer's parking lot after work by Smith and another union supporter, Logsdon, who carried a four-by-four board. The Employer also maintains that -these actions are attributable to the Union, in- asmuch as they were acts engaged in by active sup- porters of the Petitioner. The hearing officer recommended, inter alia, that Objection 1 be overruled. The Employer has ex- cepted,, and we find merit to its exceptions. The -Employer is engaged in the manufacture of marine fenders. The - record shows that employees Terry and Wayne Smith contacted the Union re- garding the possibility of organizing Seaward's em- ployees. Three union representatives (a lodge rep resentative and representatives from two neighbor- ing locals) were placed in charge of organizing the plant and conducted the eight or nine organizing meetings which were held at the union hall. Al- though employees. who attended the meetings were encouraged to sign union cards, there is no evi- dence that any employees were instructed to pass out'cards, solicit signatures, or distribute union lit- erature.3 On 4 September -1981, approximately 3 weeks before 'the election, Wiltshire, an employee who was neutral -about supporting the Union, received chemical spray ' in' his face several times during a routine spraying job.4 As a result of the spraying, Wiltshire was treated at a local hospital and later released. The record shows that, although a number of employees have received spray during the spraying process in' the past, none have re- quired hospital treatment. According to Wiltshire's uncontradicted testimo- ny, on the evening of 4 September Wayne Smith came to Wiltshire's home and told him, in refer- ence to the spraying incident, that it was "wrong" and never should have happened, that "they" were not there to force people - to sign union cards, and that he was "getting out because it was handled wrong."5 Wiltshire also testified that Wayne Smith told him that employee Cooper would be next to be sprayed. Evidence shows that Wiltshire relayed i The Employer' filed objections to conduct affecting the results of the election on 2 October 1981 Following an investigation concerning the challenges and objections, the Acting Regional Director issued a report on the challenges and objections in which he recommended that the chal- lenge to the ballot cast by Chad Blake be sustained , the Employer's ob- jections be overruled in their entirety, and a Certification of Representa- tive issue The Employer filed timely exceptions to the Acting Regional Director's report By an unpublished decision and order dated 7 March 1984, the Board adopted the Acting Regional Director's recommendation sustaining the challenge to Blake's ballot but, finding that the Employer's Objections I and 2 raised substantial issues of fact and law, directed a hearing on these objections The 4-day hearing was held before Hearing Officer Elizabeth M Tursell on 5-8 June 1984. On 4 October 1984, the hearing officer issued her report, to which the Employer has filed timely exceptions 2 The Employer has excepted to some of the hearing officer 's credibil- ity resolutions The Board's established policy is not to overrule a.hear- ing officer's credibility findings-unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect Coca- Cola Bottling Co ofMemphis, 132 NLRB 481 , 483 (1961) We have care- fully examined the findings and find no basis for reversing the findings 3 The only union literature distributed was a 21 September 1981 letter which was prepared by the union representatives and mailed directly to the employees' homes 4 One step in the Employer's manufacturing process involves spraying fenders with elastomer This process takes place in the spray booth where a large, lathe-like machine rotates the fender in order to assure the fender is completely sprayed Employees, known as "sprayers," spray elastomer on the fender as nylon filaments . are wound onto the fender; employee "wipers" wipe off the excess elastomer Fans located several feet behind the fender are used to draw the excess spray from the booth On the day in question , employees Terry Smith, Tomasik, Logsdon, Wilt- shire, Martin, and Patton and Foreman Wood were assigned to work in the spray booth 5 Wiltshire testified that Wayne Smith used the term "they" and did not identify individuals by name Wiltshire testified that he thought that the term "they" referred to the person who sprayed him He also testified that he presumed that the spraying incident and the Union were connect- ed because of the nature of Wayne Smiths' remark and as the Union was mentioned in the course of the conversation Wayne Smith did not testi- fy 275 NLRB No. 130 SEAWARD INTERNATIONAL this statement-to'Cooper and that rumors concern- ing Wiltshire's spraying circulated throughout the plant.6 . . The 'record also shows that, on- 16 September, employees Terry Smith and Penwell became - in= volved in an argument. In' the course of the argu- ment Terry -Smith; in essence, told Penwell 'that Penwell did not have the backbone to wear a union hat or T-shirt. In response,'- Penwell grabbed Terry Smith by the throat. Smith pushed Penwell away, left the work area, and, after receiving per- mission to leave work, punched out.' According to credited testimony, at the end of-,the shift; approxi- mately 2 hours later, Terry Smith confronted Pen- well in the Employeis parkirig lot whereupon Pen- well pulled a sickle'-from the trunk of his car. Em- ployee Logsdon, ' ho in the meantime' had ap- proached Terry Smith and Penwell,. picked. up ' a four-by-four board lying nearby, stating, in essence, that it was going to, be a fair fight. Penwell then got into his car and left the premises. A number of employees witnessed this incident which- was later the subject of conversation, among employees.- Further, employee testimony - indicates that, during the campaign, the amount of graffiti written on the Company's walls increased. Evidence shows that names of employees, who .were both for' and against the Union, appeared on the walls accompa-, nied by epithets such as "scab" and. "deerslayer." Finally, one employee, Tomasik, testified. that during a conversation with Logdson, Logsdon told him that Tomasik and others would-be scared to cross a picket line in the event of a walkout. . Initially, with respect to the Employer's allega- tion that the alleged objectionable conduct was at- tributable to the Union, the hearing officer found that while Lodgdon; Terry Smith, and Wood- were active union supporters and prominent. figures,' in the organizing campaign, this was 'not sufficient 'to establish agency status. She' further found, in the absence of evidence of agency status or a"showing that the Union authorized or condoned the alleged conduct, that none ' of the employees'. involved in this, proceeding was -Acting -,as an agent of , the Union. Having found no evidence of agency status, the hearing officer analyzed the" alleged - objection- able conduct under the -standard applied 'to,:thiid- party conduct, i.e., whether, the character.- of the conduct was so aggravated as to' create a general atmosphere of fear. or reprisal rendering free- ex- pression impossible.7- With respect to the spraying 6 Generally, testimony indicates that while almost all of the employees knew that Wiltshire had been sprayed, most did not know the details " 7 Central Photocolor Co, 195 NLRB 839 (1972) 941 incident, the hearing officer found, based-in part-on Wiltshire's credited testimony, `that there was no evidence that the spraying incident was deliberate. She also found that there was no motive for the spraying.8 With respect to the incidents involving Terry Smith and Penwell, the hearing officer found that such incidents reflected a clash of personalities rather than hostility toward the' Union.9 She also found that, although conversations regarding both the Terry Smith/Penwell incidents and Wiltshire's spraying circulated throughout the plant, such con- . versations were general and did not link the inci- dents to the Union. Finally, with respect to miscel- laneous' allegations of threats and property damage, the hearing officer, based primarily on her credibil- ity resolutions, i ° found only (a) that Logsdon had told Tomasik that he and others would be scared to' cross a picket line, and (b) there was an increase in the • amount -`of writing appearing on company walls. She found these incidents trivial. Applying a- third-party conduct standard, for reasons noted above, the hearing officer found- that none of the acts described; whether viewed individually or cu- mulatively, were 'sufficiently severe to have inter- fered with employee free choice in'the election.' -We agree with the hearing officer that the test to be- applied -to the alleged conduct is whether the conduct was ' so aggravated as to create a coercive atmosphere rendering the exercise of free choice impossible. i i However, we disagree with her _find- ing', that the conduct, when considered'cumulative- ly,; was not so severe as to have -interfered with the election. ' ' • In finding that the spraying incident didnot..con- stitute, in part, objectionable .conduct, the hearing officerfound no evidence that the spraying was de- liberate or'- there was a motive for the spray- ing. In so. doing„ she ,did not give appropriate weight to undisputed.testimony that on the evening of the incident prounion 'employee Wayne Smith told Wiltshire . that "they" were not there to force people, to sign union cards. - In - this respect, - she found that, as' Wayne Smith was not working in the- spray_'"booth- on '4 September, he did not have direct knowledge of how the incident occurred and that ` his' comments were only based on -what he as-- e In-, finding no, motive' for'the-spraying, the, hearing officer expressly discredited Cooper's testimony that-Wiltshire told him that he•would'be the next recipient of phsyical violence because Cooper had not commit- ted himself to the Union and that rumors that 'Cooper' would be "next" circulated 'throughout the plant`-''' " 9 In support of this finding, the hearing officer relied on testimony of employees, including Penwell, indicating that Penwell and Terry--Smith 'had had a'few disagreements in tlie'past 10 See his 8 and 9 11 Because we are setting aside the election under a third-party con- duct standard, we find it unnecessary to pass on the heanng officer's dis- cussion of union agency ' ' . 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sumed had happened. Contrary to the hearing offi- cer, we find that while Wayne Smith may not have had direct knowledge of how the incident occurred, his absence from the booth on 4 September does not necessarily reflect a lack of knowledge of why the incident occurred. Indeed, we find that the general -tenor of his remarks suggests a link be- tween Wiltshire's spraying and his neutral position on the Union. Further, whether or not the evi- dence shows that the action was deliberate, the un- disputed facts do show that an employee who was not committed to the Union received an excessive amount of spray in his face, requiring hospital treatment; that such an incident had not previously occurred; and that a union supporter subsequently indicated that the action was "wrong," was union- related, and, moreover, informed the employee who was sprayed that another employee would be next. Thus, although the hearing officer discredited Cooper's testimony ,that rumors that he would-be "next" circulated throughout the plant,12 it is clear from the record that at least three employees, i.e., Wayne Smith, Cooper, and Wiltshire, knew of the spraying incident and its link to the Union. Further, in finding the Terry Smith/Penwell iii-, cidents not to be objectionable conduct, the hear- ing officer characterized them as personal disagree- ments. However, it is clear from the record that the incidents stemmed'from a heated argument be- tween the two men' that arose over a wearing union hat and T-shirt. We find the fact that such a discussion (which included a reference to Penwell's lack of courage) could 'evoke a physical response, i.e., Penwell's grabbing Terry Smith by the throat, and subsequently accelerate into a confrontation in- volving an employee with a sickle and another em- i 2 In her report , the hearing officer generally credits Wiltshire's testi- mony regarding the spraying incident , including Wiltshire's account of Wayne Smith's remarks on the evening of 4 September. Notwithstanding her discrediting of Cooper's testimony regarding threats of future vio- lence (noted at fn. 8 supra) she also expressly found it undisputed that Wayne Smith told Wiltshire that Cooper would be next and that this statement was relayed to Cooper. As we rely on the hearing officer's findings that Wayne Smith's remarks to Wiltshire are undisputed and that Cooper was informed of these statements , which are supported by the record, we find it unnecessary to disturb the hearing officer's discrediting Cooper regarding this matter. However, we note that such finding ap- pears to be inconsistent with her crediting of Wiltshire on the point ployee with a four-by-four indicates the tense at- mosphere in which the election took place. Fur- ther, unlike the Wiltshire incident, the record shows that a number of employees' actually wit- nessed or were informed about the Terry Smith/Penwell incidents. Of the employees who testified, two (Wood and Murphy) witnessed both incidents. One employee (McIntyre), who wit-. nessed the parking lot incident, heard about the previous incident involving the 'remark that Pen- well was afraid to support the Union. Additionally, employee Leake witnessed the initial altercation be- tween Penwell and Smith regarding wearing Union unit insignia. Thus, from the record it is clear that at-least 6 individuals out of a union of approximate- ly 25-30 employees were aware that the Terry Smith/Penwell arguments arose from a union-relat- ed dispute. Evaluated cumulatively, we find that the -inci- dents described above, which involved threats and actions involving physical harm, disturbed the lab- oratory conditions necessary for an election. We further find that evidence of a substantial increase in the amount of graffiti could only contribute, albeit less significantly, - to the generally coercive atmosphere. Therefore, because of the seriousness of the inci- dents, the proximity of these incidents to the elec- tion, their occurrence in a relatively small unit, and the dissemination of the incidents, we will set this election aside and direct a new election.13 [Direction of Second Election omitted from pub- lication.] ' 13 The hearing officer also overruled the Employer's Objection 2 al- leging that union supporter Logsdon offered to pay employee Cather's union dues if she voted for the Union Because we have found that the conduct alleged by Objection I warrants setting aside the election, we find it unnecessary to address the merits of Objection 2 Member Dennis concurs in the result, emphasizing the following First, if the individuals who cast the unresolved challenged ballots were eligible and voted against the Union , the margin of the Union's victory would have been as slim as one vote . With the election results so close, the mis- conduct must be closely scrutinized See NLRB v US.M. Corp., 517 F 2d 971, 976 fn. 5 (6th Cir. 1975) Second, in a small unit, two employees were involved in, serious incidents of actual violence because they failed to assume a prounion stance during the election campaign Finally, these incidents were not isolated, but rather were disseminated to other unit employees.