Picoma Industries, Inc. And United Rubber, Cork, Linoleum

498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Picoma Industries, Inc. and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, CLC, Petitioner. Case 16-RC-8982 September 12, 1989 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS The National Labor Relations Board, by a three- member panel, has considered objections to an election held October 23, 1987,1 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement . The tally of ballots shows 68 for and 66 against the Petitioner , with 1 chal- lenged ballot, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and brief, and has decided to adopt the hearing officer's findings2 and recommenda- tions only to the extent consistent with this deci- sion. The hearing officer recommended that the Employer's objections be overruled in their entire- ty. The Employer excepts to the hearing officer's recommendation on the grounds that he misapplied the relevant standard for evaluating the threats made by union supporters toward known or sus- pected antiunion employees and failed to consider the cumulative credited evidence in determining the effect of third-party preelection misconduct on the election results. We find merit in the Employ- er's exceptions. The relevant facts are as follows.3 About 1 week prior to the Board election , as they stood in line to clock out from their 7 a.m. to 3 p.m. shift, employ- ee David Beard4 approached fellow employee Marie Holmes to ask if she knew who had reported to the foreman that Beard was harassing employees in the boring mill about the Union. Beard then stated "I'll just blow up Picoma and resolve it like that." Beard said that he was "just joking." Holmes testified he did not look or act like he was joking when he made the statement. In another incident that occurred 2 or 3 days prior to the election , Holmes overheard Gloria Mayton, a union supporter, comment to a friend as ' Unless otherwise indicated, all dates herein are 1987 z 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 Ca, 118 NLRB 1359, 1361 (1957) We find no basis for reversing the findings. 8 The narrative facts are based on the testimony credited by the hear- ing officer 4 David Beard's nickname is "Animal." they left the ladies' restroom that, if the Union came in, those persons who tried to cross the picket line could get their heads blown off and their tires slashed.5 About 1 week prior to the election, union sup- porter Bobby Dorsey approached employees Shonna Brown and Holmes near their work station and said that "if the Union doesn't get in, some- one's asses are in trouble." Holmes became upset after she asked Dorsey if he was threatening her and he refused to answer. Holmes reported the in- cident to her foreman. On October 14, immediately following an antiun- ion presentation by Linda Northcutt, employee Randy Gerrald was standing in line to clock out when he overheard Leonard Neal and Norris Har- tefields talking in loud and angry voices about Northcutt's presentation. Neal said he would "blow her [expletive deleted] car up," and then he held up his clenched fist and shouted "Union, union, union." Neal also said he would like to beat up Northcutt and that she better not walk past the timeclock. Hartefields said that he too would like to beat up Northcutt. Gerrald stated that approxi- mately 20 other employees were in line with him and that they remained quiet and listened to what Neal and Hartefields had to say.6 Gerrald did not warn Northcutt about the threats made by Neal and Hartefields, but he did report the incident to Foreman John Olszeski. About 2 or 3 days before the election, employee Linda Fricks and union organizer Brooksie Holden were in the lunchroom talking about the possibility of a strike and about what could happen to people who cross the picket line.? Holden told Fricks "there would probably be trouble if anybody crossed the picket line." On these facts the hearing officer found, and we agree, that the evidence shows that the alleged ob- jectionable conduct is not attributable to the Peti- tioner and must be considered under the standard for third party conduct set forth in Westwood Hori- zons Hotel, 270 NLRB 802, 803 (1984)-that is "whether the misconduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible ." However, we disagree with the hearing officer's application of S In an incident that occurred on September 18, Mayton punched Holmes in the arm as they stood in line to clock in The hearing officer found that there was no evidence that the incident was motivated by the Petitioner's organizational campaign or that the Petitioner authorized the conduct He further found that the punch was too remote in time to have had an effect on the results of the October 23 election. 6 The hearing officer credited Gerrald's testimony . However, he failed to mention Gerrald's assertion that Neal and Hartefields' comments were made in the presence of approximately 20 employees T Fricks and Holden are cousins. 296 NLRB No. 69 PICOMA INDUSTRIES that standard to the evidence in this case . We find that in concluding there was no objectionable con- duct, the hearing officer misconstrued the West- wood Horizons Hotel standard, failed to consider critical aspects of credited testimony, and failed to properly consider the cumulative evidence. In applying the Westwood Horizons Hotel criteria, the hearing officer erred by emphasizing the reac- tions of employees to the threats . Thus, in evaluat- ing the threats directed to Holmes, the hearing offi- cer relied orr her testimony that her vote in the election was not affected by anything that hap- pened to her in the election campaign . Similarly, he discounted Holden's remarks to Fricks on the ground that Fricks testified she did not feel threat- ened by them, and he noted that Gerrald stated that he did not vote in the election because he was ill and not because of any threats made by Neal and Hartefields. Finally, in rejecting the overall al- legation of misconduct in objection 3, he expressly noted that of the 16 employees who testified at the hearing, all voted in the election except one who was ill on the day of the election. None of the wit- nesses testified that their choice was affected by election misconduct, and 12 witnesses specifically testified that they voted freely. The hearing officer's analysis ignores well-estab- lished Board precedent that "the subjective reac- tions of employees are irrelevant to the question of whether there was, in fact, objectionable conduct." Emerson Electric Co., 247 NLRB 1365, 1370 (1980), enfd. 649 F.2d 589 (8th Cir. 1981). Rather, the test is based on an objective standard. In this regard, the hearing officer misconstrued the Westwood Ho- rizons Hotel factor of "whether it is likely that the employees acted in fear of his [a third party's] ca- pability of carrying out the threat ." 270 NLRB at 803. In setting forth this factor, the Board did not validate the use of subjective evidence . Rather, the Board's focus was on "the reasonableness of em- ployee fears" as reflected by objective facts. See Electra Food Machinery, 279 NLRB 279, 280 fn. 13 (1986). The hearing officer further erred in failing to consider significant credited testimony . He general- ly credited the testimony of Randy Gerrald who stated that on October 14 while he was standing in line to clock out, he heard employees Neal and Hartefields talking about employee Northcutt who had earlier made an antiunion presentation . Gerrald testified that these employees threatened to beat up Northcutt, and blow up her car . Gerrald did not tell Northcutt or other employees of these threats. The hearing officer found that the threats were "immaterial and had no bearing upon the election" in view of the fact that they were not disseminated. 499 In making this finding, the hearing officer ignored Gerrald's testimony that he was 1 of more than 20 employees standing in line to clock out when the incident occurred and that the other employees in line remained "quiet" and listened to what Neal and Hartefields had to say . Thus, contrary to the hearing officer's conclusion, the threats were made in the presence of at least 20 employees in a unit of some 140 employees and cannot be viewed as im- material. Finally, the hearing officer failed to properly consider the cumulative effect of the credited testi- mony. He either discussed the threats separately (or as in the case of Holmes, a group of threats made to one person is discussed separately from evidence of other misconduct) or made the improp- er general conclusion that no misconduct affected the election because of the subjective reactions of employees. Applying the appropriate standards to the cred- ited facts of this case, we find that the threats to blow up the Company and physically to injure those employees who did not support the Union and to damage their property, would reasonably tend to create a general atmosphere of fear and re- prisal rendering a free election impossible . There is no question that the nature of the threats supports such a finding. See, e.g., Sonoco of Puerto Rico, 210 NLRB 493 (1974), and Zeiglers Refuse Collectors v. NLRB, 639 F.2d 1000 (3d Cir. 1981). Further, the threats involved here were not di- rected solely to specific individuals, but involved any unit employee who did not support the Union. Thus, David Beard threatened to blow up the plant because someone reported to the foreman that he was harassing employees about the Union; Bobby Dorsey threatened that "someone's asses are in trouble" if the Union did not win the election; Brooksie Holden threatened that there would prob- ably be trouble if anyone crossed the picket line once the Union was selected; and Gloria Mayton threatened that people crossing the line could get their heads blown off and their tires slashed. Leon- ard Neal and Norris Hartefields' remarks about Linda Northcutt had the same implication for unit employees who vocally opposed the Union. Short- ly after Northcutt's antiunion speech, Neal and Hartefields said they would like to beat her up; Neal threatened to blow up her car and then shout- ed "Union, union, union." Their remarks clearly were not addressed to Northcutt as an individual, but to her open position against the Union and any employee who spoke out against the Union could reasonably fear such a response from Neal and Hartefields. 500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All of the threats discussed above occurred shortly before the election, ranging in time from 2 weeks to 2 days before the election, and were dis- seminated to approximately 25 employees in a unit of some 140 employees. This breadth of dissemina- tion is not insignificant given the closeness of the election. (The tally of ballots was 68 for and 66 against the Union with 1 challenged ballot.) The Board has given special attention to the election tally in evaluating coercive conduct where a change of only a few votes could have led to dif- ferent results. See RJR Archer, Inc., 274 NLRB 335, 336 (1985), where the union won the election by only three votes in a unit roughly equivalent in size to the unit in this case . See also YKK (U.S.A.), Inc., 269 NLRB 82, 84 (1984). For all of these reasons, we find the credited evi- dence, evaluated cumulatively, shows that the threats made by union supporters of harm, physical injury, and property damage directed toward known or suspected antiunion employees created a general atmosphere of fear and coercion that ren- dered a free choice in the election impossible. We, therefore, shall set aside this election and direct that a new election be conducted.8 [Direction of Second Election omitted from pub- lication.] 8 Members Cracraft and Higgins rely principally on the threats made by employees Neal and Hartefields in reaching this conclusion and find the threats made by other third parties objectionable only when consid- ered cumulatively.