Electra Food Machinery, Inc.

ELECTRA FOOD MACHINERY Electra Food Machinery, Inc. and Building Material and Dump Truck Drivers, Local 420, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 21-RC-17473 14 April 1986 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON The National Labor Relations Board, by a three- member panel, has considered objections to an election held 1 November 1984 and the hearing of- ficer's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 37 for and 11 against the Petitioner , with 13 nonde- terminative challenged ballots, and 1 void ballot.' The Board has reviewed the record in light of the exceptions and brief, and has decided to adopt the hearing officer's findings and recommendations only to the extent consistent with this decision. In September 1984, the Union filed a representa- tion petition seeking certification as the collective- bargaining representative of the Employer's 65 pro- duction and maintenance employees employed at its facility in El Monte, California, where it manu- factures food production machinery.2 When the organizational campaign commenced, union supporter Bernardo Bernal solicited employ- ee Juan Vigil to sign a union authorization card. Vigil refused to sign, expressing his union opposi- tion.3 Bernal then told Vigil that other "Latino" employees would know he had not signed a card and this would get him in "trouble." Three days later, threats of physical harm and property damage to known or suspected antiunion employees appeared in writing on company bath- room walls. The threats stated that "they" were going to "kill Vigil," "beat him up," "beat the shit out of all the Perez'," and burn Vigil's and employ- ' The Employer filed objections to the election on 6 November 1984 Following an investigation, the Regional Director issued his report rec- ommending that the Employer's objections be overruled , and that a Cer- tification of Representative issue. The Employer filed timely exceptions to the Regional Director's report By an unpublished decision and order dated 10 April 1985, the Board adopted the Regional Director's Report, except that it remanded the Employer's Objection 5 for hearing The hearing was held before the hearing officer on 8 May 1985 On 4 June 1985 the hearing officer issued her report, and the Employer filed timely exceptions 2 The factual narrative is based on relevant testimony the hearing offi- cer credited 8 Vigil testified that his opposition was evident to all employees since he refused to sign a union card or attend union meetings, and because he was the target of threats aimed at nonunion supporters 279 ee Sergio Corona's4 cars if they did not support the Union. The written threats continued to appear on the Company's restroom walls until election day,5 even though employee Juan Perez, the Com- pany's janitor, would wipe them off daily. Juan Perez testified that before the election campaign, such threats against employees never appeared on the walls. Vigil received similar threats at his work station. Juan Villalpando, an employee who worked near Vigil, threatened aloud to "break" Vigil's face if he did not join the Union. Villalpando also told Vigil that "La Raza," a group of employees who drank ever Friday evening at the Company's parking lot, were going to "fuck him over" if he did not vote for the Union.6 While not specifying the timeframe, although within the critical period, Vigil also testified that employees Sergio Corona, Ramon Ramirez, and Raul Gonzalez7 told him they saw he was "having problems," and stated that they were also having problems because they had not signed union cards.8 Vigil credibly testified he was frightened by the oral and written threats involving him. As it was not attributable to the Union, the hear- ing officer analyzed the alleged objectionable con- duct under the third-party standard, i.e., whether the character of the conduct was so aggravated to create a general atmosphere of fear or reprisal ren- dering free choice in an election impossible.9 In de- termining the seriousness of the preelection threats, the hearing officer purportedly applied the follow- 4 Employee Crisanto Perez testified that although Corona supported the Union at first, he withdrew his support before the election and there- after threats against him were written on the bathroom walls 5 Manager William Hughes testified that approximately 35 employees used the bathroom facility Although the hearing officer discredited those portions of Hughes' testimony based on hearsay evidence, she did not dis- credit his entire testimony Indeed, she stated , "[a]ll witnesses testified in a straightforward and truthful manner." 6 Vigil also testified that 10 days before the election, employee Feno Flores asked him if he had voted Vigil replied negatively, stating he did not want the Union According to Vigil, Flores then stated Vigil was "going to get a beating," and that "they" were going to break his now because he was unsupportive of the Union The hearing officer credited this testimony and found that it occurred before the election We, howev- er, do not rely on it because we find the conversation' s content makes it unclear whether this exchange actually occurred before or after the elec- tion ' The hearing officer's report inadvertently refers to "Paul" rather than "Raul" Gonzalez 8 The nature of this statement implies that it was based on objective facts employees witnessed and not on Vigil's or the employees' subjective reactions Under cross-examination, Vigil also testified that he mentioned his "fears" to other employees, int:luding Robert Vargas, Sergio Corona, Paul Gonzales, and Ramiro Flores However, any evidence of Vigil's subjective reactions is irrelevant in determining objectionable conduct. See infra p 6 8 Diamond State Poultry Co, 107 NLRB 3, 6 (1953), P D Gwaltney, Jr. & Co, 74 NLRB 371, 379-380 (1947) See also NLRB v Griffith Oldsmo- bile, 455 F 2d 867, 870 (8th Cir 1972) 279 NLRB No. 40 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing criteria from Westwood Horizons Hotel, 270 NLRB 802, 803 (1984): [T]he Board evaluates not only the nature of the threat itself, but also whether the threat encompassed the entire bargaining unit; wheth- er reports of the threat were disseminated widely within the unit; 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 whether the threat was "reju- venated" at or near the time of the election. [Footnotes omitted]. The hearing officer found as follows: [T]he evidence reveals that throughout the 2 month period prior to the election, a person or persons unknown, in increasing volume, wrote insults, epithets and threats on the restroom walls of the Employer directed to numerous employees who were, or were thought to be, nonsupportive of the Union. Some of the state- ments were threats of physical violence to the persons or property of the named employees. Additionally, employee Juan Vigil received direct threats of physical violence if he did not vote for the Union.10 She also found that the written threats were widely disseminated and persisted up to and beyond the election date." The hearing officer concluded, nevertheless, that the employees did not act in fear of the written threats or seriously con- sider them, and noted that no employee other than Vigil was orally threatened. Finding no evidence that employees were fright- ened by the written threats except for Vigil' s testi- mony concerning his "fears," the hearing officer concluded the third-party misconduct did not affect employee free choice. Regarding the spoken threats directed to Vigil, the hearing officer found that they did not encompass the entire bargaining unit; that the evidence did not show they were widely disseminated; and that employees did not act in fear of the threats being carried out. Thus, the hearing officer concluded that, even if viewed cumulatively, the misconduct committed was not so aggravated to create a coercive atmos- 10 Hearing officer's report, p 15 11 "[I]t is clear that most, if not all, the bargaining unit must have read them at one time or another inasmuch as they were written there on a daily basis " Hearing officer's report, p. 17 phere rendering the exercise of free choice impossi- ble. Although we agree with the hearing officer that the third-party standard and the Westwood cri- teria apply, we disagree with her finding that the conduct, as a whole, was not so aggravated to interfere with the election. The hearing officer conceded that serious writ- ten threats-to kill or beat up identified or suspect- ed nonunion adherents and burn their automo- biles-were widely disseminated. She erred, how- ever, in recommending overruling the objection on the ground that "it does not appear that the em- ployees acted in fear of any of the threats being carried out, or that employees considered them se- riously at all." 12 In so doing, she ignored well-es- tablished Board precedent that "the subjective re- actions of employees are irrelevant to the question of whether there was, in fact, objectionable con- duct." Emerson Electric Co., 247 NLRB 1365, 1370 (1980); accord: Janler Plastic Mold Corp., 186 NLRB 540 (1970); G. H. Hess, Inc., 82 NLRB 463 fn. 3 (1949). Instead, the test is an objective one.13 Viewed properly, the widespread threats here to kill and physically harm those nonsupportive of the Union, and threats to damage their property, con- tinuing over a 2-month period up to the election day, reasonably tend to create a general atmos- phere of fear and reprisal rendering a free election impossible. See Westwood Horizons Hotel, supra at 803. See also Sonoco of Puerto Rico, Inc., 210 NLRB 493 (1974) (threats of "blows and slaps," and "beat[ing] up" for nonunion supporters, direct- ed to at least 13 employees in 19-member unit); and Zeiglers Refuse Collectors v. NLRB, above (five sep- arate incidents of coercion involving four threat- ened employees occurring near the election date and widely disseminated in a 30-member unit). Accordingly, we shall set aside the election and direct a new election. [Direction of Second Election omitted from publica- tion.] 12 Hearing officer's report, p 17 In support of this finding, the hearing officer cited Juan Perez' testimony that he felt anger more than fear when he read threats directed to the "Perez'," and on the fact that no employee, other than Vigil, testified to being frightened by threats 13 In Westwood Horizons Hotel, above, 270 NLRB at 803 (citing Anchor Inn Hotel of St. Croix, 262 NLRB 1137, 1139 (1982), and Zeiglers Refuse Collectors v NLRB, 639 F 2d 1000, 1005 (3d Cir 1981)), the Board did not validate the use of subjective evidence in stating a relevant factor is "whether the person making the threat was capable of carrying it out, and whether it is likely that employees acted in fear of his capability of carrying out the threat." Rather, the Board's focus was on "the reason- ableness of employee fears" as reflected by objective facts Anchor Inn Hotel, 262 NLRB at 1139. Therefore, by considering subjective testimony or lack thereof, the hearing officer misapplied this Westwood criterion