The John M. Horn Lumber Co.

JOHN M. HORN LUMBER CO. 593 The John M. Horn Lumber Co. and Ohio Valley Carpenters District Council, Local Union No. 415, United Brotherhood of Carpenters and Joiners of America, AFL-CIO-CLC. Case 9- RC-14686 24 June 1986 DECISION AND CERTIFICATION OF REPRESENTATIVE 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 23 May 1985 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 19 for and 17 against the Petitioner, with no chal- lenged ballots. The Board has reviewed the record in light of the exceptions and briefs, has adopted the hearing officer's findings' and recommendations, 2 and finds that a certification of representative should be issued. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Ohio Valley Carpenters District Council, Local Union No. 415, United Brotherhood of Carpenters and Joiners of America, AFL-CIO-CLC and that it is the exclusive collec- tive-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees in- eluding truck drivers employed by the Em- ployer at its Hamilton, Ohio facility, but ex- cluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, I find that the physi- cal assault and threats engaged in by the Petition- i 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. 2 We agree with the hearing officer's recommendation that the Em- ployer's Objections 1, 2, and 3 be overruled . However, we find it unnec- essary to decide whether the Petitioner's in-plant organizing committee members were agents of the Petitioner at the time of the alleged conduct since, even if they were agents, their conduct was insufficient to warrant setting aside the election In response to our dissenting colleague, we have attached the pertinent portions of the hearing officer's report er's organizing committee members undermined the laboratory conditions necessary for a free and fair election. I agree with the majority that the circum- stances of this case make it unnecessary to decide whether the Petitioner's organizing committee members were agents of the Petitioner when the misconduct occurred. Even under the Board's third-party standard for campaign activity, I find merit in the Employer's Objections 1 and 2 and would set aside the election on those grounds. The Employer's Objection 2 alleges that the Pe- titioner created an atmosphere of fear and intimida- tion by assaulting an employee who expressed op- position to the Union. The hearing officer found that, some 2 or 3 weeks before the election, em- ployees Messelling, Gray, and Roach discussed the pros and cons of the Petitioner in the employees' restroom. Roach, a member of the Petitioner's in- plant committee, was wearing a "throw knife" dis- tinct from the tools commonly worn within the plant. At some point in the conversation, Gray an- nounced that he was not going to vote for the Peti- tioner. Roach then approached Gray, struck Gray's hat with sufficient force to knock it from his head, and told him that Gray had "better vote for the f- union." The hearing officer found that Roach ap- peared serious during this incident. Gray then re- plied that he was going to vote for the Petitioner. Gray subsequently informed his supervisor of the incident, and Messelling related it to two other unit employees. The election was conducted by secret ballot on 23 May 1985. In a unit of approximately 36 eligible voters, 19 cast ballots for the Petitioner and 17 cast ballots against. The hearing officer concluded that the Employ- er's Objection 2 was without merit. According to her analysis, Roach's threat was not isolated, be- cause four, or perhaps five, unit employees learned about it.' Nevertheless, the hearing officer found the threat unobjectionable. Applying the criteria enumerated in Westwood Horizons Hotel, 270 NLRB 802 (1984), she found no evidence that the threat was rejuvenated at or near the time of the election, and was unable to determine whether Roach was capable of carrying out the threat, or whether other employees acted in fear of it. She also noted that coarse language and physical horseplay were common in the Employer's workplace. In evaluating conduct not attributable to either party to an election, the Board measures whether that conduct has created a general atmosphere of fear and reprisal which renders a free election im- possible. Diamond State Poultry Co., 107 NLRB 3 1 It was undisputed that Roach's remarks could have been overheard by another unit employee then in the restroom 280 NLRB No. 69 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1953). We have recently emphasized investigation of the character and circumstances involving pree- lection threats, and articulated several criteria for determining their seriousness. Westwood Horizons Hotel, supra. We have never demanded, however, that the Westwood criteria be applied mechanically in every case. As the hearing officer herself indi- cated, these criteria are ill-suited to the instant cir- cumstances. In my view, the crucial factor in this case is the actual assault inflicted by Roach upon Gray. Gray's shifting expressions of support for the Peti- tioner demonstrates that he himself was actually co- erced and intimidated. The record indicates actual dissemination of this incident to several unit em- ployees. Both Board and courts have emphasized repeat- edly the intensified effect of threats and violence in a small unit, particularly where the election tally was close. Where a small change in votes would lead to a contrary election result, otherwise isolat- ed misconduct must be scrutinized with special at- tention. RJR Archer, Inc., 274 NLRB 335 (1985); YKK (U.S.A.) Inc., 269 NLRB 82 (1984); Flowers Transportation Co. v. NLRB, 739 F.2d 214 (6th Cir. 1984); NLRB v. Mr. Porto, 590 F.2d 637 (6th Cir. 1978). In this case, where a single shift in the vote would alter the result, a violent assault actually co- erced one employee and was actually disseminated to several others. The assault manifestly created an atmosphere of fear and coercion which rendered a free election impossible. I would set aside this elec- tion based on the Employer's Objection 2. The Employer's Objection 1 alleges that the Pe- titioner created an atmosphere of fear and intimida- tion by threatening employees with physical vio- lence if they did not support the Petitioner. The hearing officer found that, approximately 3 weeks before the election, at a distance of 50 feet from any other employees in the Employer's facility, employee Sutherland heard someone say, "There's a m-f-, I'm gonna blow his brains out and I'm looking straight at him." Sutherland turned and saw employee Secrest standing 15 to 20 feet away and looking at him. Sutherland said nothing; Se- crest looked at him for another half a minute before walking away. Secrest was another member of the Petitioner's in-plant committee. Some 2 or 3 days prior to this incident, Sutherland had made antiunion statements in Secrest 's presence. The hearing officer concluded that the Employ- er's Objection 1 was without merit. According to her analysis, Secrest's statement constituted an "ob- vious" threat. However, no record evidence dem- onstrated a causal connection between this threat and the organizing campaign . Secrest's statement was never rejuvenated during the remaining 3 weeks of the election campaign. The record pre- sented no evidence that any other employees learned of the threat prior to the election. The hearing officer's finding of no causal con- nection between this threat and the organizing campaign is contrary to the record evidence. Se- crest was an active union adherent. Only 2 or 3 days before he uttered his threat, Secrest heard Sutherland express antiunion sentiments. According to Sutherland's testimony, which the hearing offi- cer deemed forthright and reliable, no other dis- pute separated the two men. Sutherland stated that he felt threatened because he opposed the Union and Secrest favored it. In my view, these circum- stances require the inference that Secrest threat- ened Sutherland because of the latter 's antiunion sentiments. The absence of record evidence that the threat was disseminated is not dispositive. As I have pre- viously suggested, it is reasonable to infer the egre- gious union threats during the preelection period would become known to unit employees. Avis Rent-A-Car System, 280 NLRB 580 (1986) (Chair- man Dotson dissenting). In any event, the Board views third-party conduct cumulatively. Secrest's threat, coupled with the assault inflicted by Roach upon Gray, should be deemed to have disturbed the essential laboratory conditions for the election. Seaward International, 275 NLRB 940 (1985). I would set aside the election based on the Employ- er's Objection 1. As troubling as my colleagues' analysis of this case is their unwillingness to confront the deeper policy implications. In adopting the hearing offi- cer's findings, my colleagues turn a blind eye upon Roach's assault and Secrest's egregious threat. As the courts have made clear, there is no place for violence in our system of industrial relations. Asso- ciated Groceries of New England v. NLRB, 562 F.2d 1333 (1st Cir. 1977); NLRB v. W. C. McQuaide, Inc., 552 F.2d 519 (3d Cir. 1977); and Operating En- gineers Local 542 v. NLRB, 328 F.2d 850 (3d Cir. 1964), cert. denied 379 U.S. 826 (1964). It is the proper place for the Board to support the standards of conduct which the courts have articulated. Avis Rent-A-Car System, supra, 280 NLRB 580 (Chair- man Dotson, dissenting); NLRB v. A. Duie Pyle, Inc., 730 F.2d 119, 124 (3d Cir. 1984). In light of the above considerations, I find that the Petitioner's misconduct created a general at- mosphere of fear and coercion which rendered a free election impossible. Accordingly, I would sus- tain the Employer's Objections 1 and 2, and set the election aside. JOHN M. HORN LUMBER CO. 595 -APPENDIX FINDINGS OF FACT- The Employer's Objection No. 1 alleges that the Peti- tioner, by threatening employees with physical violence if they did not support the Petitioner, created an atmos- phere of fear and intimidation which prevented a fair election. In support of this Objection the Employer pre- sented employee Kenneth Sutherland. Sutherland testified that about 3 weeks before the elec- tion he was using a small electric saw in the main work area of the Employer's facility, approximately 50 feet away from any other employees. He heard someone behind him say "There's a m-f-, I'm gonna blow his brains out and I'm looking straight at him." Sutherland turned and saw employee Andrew Secrest standing 15- 20 feet away, looking at him. Sutherland stated that he said nothing, but watched Secrest, who looked at him for another half minute before walking away. He testi- fied further that he believed he had been threatened be- cause Secrest, a member of the Petitioner's in-plant com- mittee, supported the Petitioner and he did not. In rebuttal, the Petitioner presented Secrest. Secrest had admitted, in his prehearing affidavit, that it was pos- sible he had made the alleged statement to "someone" but did not remember doing so. At one point in his testi- mony at the hearing Secrest went further, admitting that he "probably" said "something like that." Almost imme- diately thereafter in his testimony, Secrest, stated that the only person he could think of whom he had said "some- thing like that" to was employee Ralph Evans.3 As a rule, I would attach relatively greater weight to Secrest's testimony because he no longer has a direct stake in the outcome of the election.' He did not contradict his own testimony regarding Sutherland and I am not convinced that his denial was a deliberate fabrication. Nevertheless, I believe his memory to be, at best, unreliable. Admittedly, Secrest was experiencing a great deal of pressure during this period of time, both at work and in his personal life, and his state of mind was such that he could have made statements he later did not recall. At the hearing he testified, for the first time, that he prob- ably made statements similar to those attributed to him by Sutherland and that he could "think of' only one em- ployee to whom he had made a similar statement. Fur- thermore, Secrest testified that on his last day of work he attempted to ask Sutherland why no one would speak to him. He made this effort although admittedly he had never spoken to Sutherland before. Secrest did not ex- plain why he believed Sutherland would have any in- sight into this matter and his explanation that he hap- pened to question Sutherland merely because Sutherland passed by his work station is less than convincing. Sutherland's testimony, on the other hand, was rela- tively forthright and consistent and I conclude that his recollection is much more reliable than Secrest's. I fmd, therefore, that Secrest did call Sutherland an obscene name and threaten him with bodily harm. a Although Evans testified, he was not questioned as to whether Se- crest made such a statement to him * He voluntarily quit his employment with the Employer prior to the hearing Employer's Objection No. 2 alleges that the Petitioner created an atmosphere of fear and intimidation by as- saulting an employee who expressed opposition to the Petitioner. In support of this Objection the Employer presented two witnesses, employees Ricky L. Messelling and Jerry Gray. The Petitioner presented no witnesses. Messelling testified that he, Gray and- employee James Roach, another member of the Petitioner's in-plant com- mittee, were discussing the pros and cons of the Petition- er while they were in the employees' restroom 2 or 3 weeks before the election. Messelling stated that in the course of the conversation Gray said he was not going to vote for the Petitioner. Roach flushed and then slapped at Gray's head, causing Gray to jerk his head back. Roach's open hand struck the bill of Gray's hat, which fell to the floor. Roach told Gray that he had "better vote for the f- union" and Gray replied that he was going to vote for the Petitioner. At that point, Mes- selling left the restroom. Gray testified that the incident began as he and Mes- selling were leaning against the wall in the restroom talk- ing about the Petitioner. Roach walked into the restroom at the time Gray told Messelling if the Petitioner came in the Employer would not negotiate and there would be no more Christmas parties or bonuses. Roach made an obscene comment about the Employer and "barely hit" Gray's hat, which fell to the top of Gray's eyebrows. Gray picked up his hat, called Roach an asshole and left the restroom. According the Gray, Messelling was still in the restroom at that time. Gray stated he believed Roach hit his hat because he was talking against the Peti- tioner. Although both Messelling and Gray appeared willing, at times, to color their testimony in favor of one of the parties,5 on balance I believe Messelling was the more credible witness. Gray appeared to be a very impression- able young man who was an extremely nervous witness. More often than Messelling, he exhibited an inability to recall certain events, such as whether he discussed his testimony with anyone prior to the hearing. Finally, Gray's testimony that Roach, by all accounts a friend of his, never discussed the Petitioner with him is essentially incredible. It is undisputed and I find, that Roach approached Gray, who was speaking against the Petitioner and hit Gray's hat with enough force to cause it to fall from his head. Further, I am persuaded that Roach told Gray he had better vote for the f- union. Messelling's assessment that Roach appeared to be serious during this incident is also undisputed and I so find. As previously noted, Secrest's statement to Kenneth Sutherland is the basis for the Employer's Objection No. 1. The record is devoid of any evidence that would 6 Each exhibited a tendency to exaggerate when testifying regarding the force of Roach's blow Gray testified that Roach "barely hit the top" of his hat (even though it fell from his head ) while, according to Messell- ing, the blow could have knocked Gray down. During his testimony con- cerning horseplay in the shop, Messelhng gratuitously characterized the horseplay which he admitted employees engaged in as "not threatening" or "joking around." Gray appeared to be extremely reluctant to answer any questions concerning his contacts with the Petitioner after the elec- tion. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD show a causal connection between this obvious threat and the organizing campaign . To establish such a con- nection the Employer relies solely on the fact that Se- crest wore his committeeman's button during this inci- dent. However, , by all accounts Secrest wore his commit- teeman's `button nearly continuously during the cam- paign, and I believe it would be preposterous to con- clude all of his conversations during this time were union related even those during which the campaign was not mentioned . Secrest , said nothing about the Petitioner, or his or Sutherland's feelings concerning the Petitioner during this incident. Abney testified concerning an inci- dent that, if it had occurred, would have shown a causal connection between the campaign and Secrest's con- duct.' t Sutherland, however, denied making such a statement and I credit him in light of my previous discus- sions concerning his and Abney's relative credibility. Even Sutherland stated that the fact Secrest wore a com- mitteeman's button did not establish a connection in his mind; rather the connection was established by his and Secrest's feelings about the Petitioner. Even though Sutherland may have perceived the comment to be union related however, the fact remains there is no evidence to support his belief. Futhermore, the threat which oc- curred 3 weeks prior to the election was not rejuvenated at or near the time of the election, nor was there any evidence that any other employees learned of this inci- dent prior to the election. For all the reasons set forth above, I conclude that Employer's Objection No. I is without merit. I am left, therefore, to consider the conduct of James Roach. The incident involving Roach and Gray is poten- tially the most serious of those found to be related to the organizing campaign. It is undisputed that Gray's super- visor learned of the incident, that Messelling related it to two other employees and that Roach's remarks could have been overheard by a third who was in the restroom at the time. As the threat was made known to at least i i Abney testified he heard Sutherland tell another person that Suther- land would knock any m-f-'s head off who tried to keep him (Suther- land) from going across a picket line. four or possibly five bargaining unit employees including Gray and Messelling it was not isolated . i 2 There is no evidence that the threat was rejuvenated at or near the time of the election. Since Roach did not specify exactly what would happen to Gray if Gray did not vote for the Petitioner, I am unable to evaluate his statement in light of two other Westwood criteria, i.e., whether Roach was capable of carrying out his threat and whether other em- ployees acted in fear of that capability. Rather, L believe I must examine the nature of this general "or else" type of threat in the context of its surroundings. Messelling very reluctantly admitted that normally there is rough language used in the shop, that he and another employee throw sawdust at each other and hit each other on the shoulder, and that other employees had been pushed or slapped during horseplay. Gray testified, without contra- diction, that he and his supervisor pour sawdust on each other and that he has called his supervisor an asshole. Sutherland testified that he has heard name-calling in the shop and has seen employees throw water on one an- other. Under these circumstances, after comparing Roach's statement to the not uncommon occurrences in this plant, I am unable to conclude that it was of such an aggravated nature that , standing alone, it created a gener- al atmosphere of fear and reprisal which rendered a free election impossible. Rather, the record shows that ac- tions very similar to Roach's, including physical contact, are so acceptable in this plant that at least one supervisor joins in. Therefore, I conclude it is highly unlikely that Roach's conduct coerced prospective voters to case their ballots in a particular manner .1 a In reaching this conclu- sion, I have specifically not relied upon the assertions of Gray and Messelling that they were not threatened. 14 For all the reasons stated above, I conclude that Em- ployer's Objection No. 2 is without merit. 12 Recently, in The Marmon Group, Inc., A Division of Long Airdax Company, 275 NLRB 652 (1985), the Board held that in a unit of 115 em- ployees, threats to five individuals which were disseminated to "several" others were not isolated. 18 Great Atlantic Tea Co., 177 NLRB 942 (1969). 14 See The Coco-Cola/Dc Pepper Bottling Company of Memphis, 273 NLRB 444 ( 1984).