N.L.R.B. v. Bostik Div., USM Corp., 74-1599
| Decision Date | 13 June 1975 |
| Docket Number | No. 74-1599,74-1599 |
| Citation | 517 F.2d 971 |
| Parties | 89 L.R.R.M. (BNA) 2585, 77 Lab.Cas. P 10,920 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BOSTIK DIVISION, USM CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D. C., Paul J. Spielberg, John F. Depenbrock, Peter G. Nash, John S. Irving, Patrick Hardin, John J. A. Reynolds, Jr., Director, Region 26, N.L.R.B., Memphis, Tenn., for petitioner.
W. Bruce Swain, Bowling, Brackhahn & Jackson, Yelverton Cowherd, Jr., Richard A. Brackhahn, Memphis, Tenn., for respondent.
Before EDWARDS, MILLER and LIVELY, Circuit Judges.
This case is before the Court upon application of the National Labor Relations Board for enforcement of its order issued against Bostik on April 2, 1974. The Board found that Bostik had violated Sections 8(a)(5) and (1) of the Act by refusing to bargain with the Union, which had been certified as the exclusive bargaining representative of Bostik's employees. The Board granted the Union's motion for summary judgment on the ground that all issues raised by Bostik were or could have been litigated in the prior representation proceeding. The company was ordered to cease and desist from the unfair labor practices found, to bargain with the Union upon request, and to post appropriate notices.
To determine whether the Board erred in its findings that Bostik violated the Act in refusing to recognize and bargain with the Union we must reach the question whether the Board properly certified the Union as the representative of Bostik's employees.
On May 8, 1972 the Union filed a representation petition with the Board, seeking to represent a bargaining unit of the company and on June 21 a Board conducted election was ordered. This election was held on August 3, 1972, resulting in a vote of 60 to 54 in favor of the Union, with three ballots challenged. The company filed objections on August 10 to certain conduct allegedly affecting the results of the election. It was contended that certain actions and conduct of Union sympathizers had destroyed the laboratory conditions required for conducting a free election.
An investigation of the company's objections was made by the Board's Regional Director. He concluded that the objections should be overruled in their entirety. On November 2, 1972 the Board granted a request for review of certain issues and a hearing was held in which all parties participated. It was the conclusion of the hearing officer that the incidents upon which the company based its complaints had in fact occurred but that they had not created "an atmosphere of fear and reprisal rendering a free expression of choice of representatives impossible."
The company subsequently filed timely exceptions to the hearing officer's report, contending that the cumulative effect of the employees' pre-election conduct had been disregarded and arguing that the atmosphere of fear and reprisal created by such conduct had precluded a free election. The Board reviewed the rulings of the hearing officer and found that no prejudicial error had been committed (Chairman Miller dissenting). The hearing officer's conclusions and recommendations were adopted and the Union was certified as the employees' exclusive bargaining representative.
On May 8, 1973, the Union requested the company to bargain with it as the certified exclusive bargaining representative. The company refused. A complaint then issued, alleging that the company's refusal was a violation of the Act. In its answer, the company admitted its refusal to bargain but again challenged the validity of the Union's certification on the same grounds advanced previously in its August 10 objections. The Union then moved for summary judgment which was granted by the Board.
The company's objections revealed some 20 incidents which can be considered as relevant to the issue before us. There were four occasions of apparent physical threats during the course of the Union campaign. The threats objected to were of the nature of those not uncommon among workers in an industrial setting. 1 These comments, even in the context of an upcoming Union election, are not the type that would be expected to have a coercive impact. Such irresponsible threats are almost inevitable in the course of a heated election campaign and most employees doubtless expect such exchanges.
In evaluating the impact of the threats, we must take account of affirmative evidence in the record indicating that the "threats" were not considered or intended seriously and had no inhibitory effect on the voters. There was evidence that two employees involved in several of the incidents "always kidded and joked around with each other a lot," and that the employee to whom the abusive language was directed "kind of laughed" and replied that "if he thought he could, (to) go ahead and try it." The same "threatened" employee further testified that he was not intimidated and voted against the Union.
Woods, the recipient of another of the so-called threats, also voted against the Union and testified that there was nothing personal between him and the one using the supposedly threatening language. The hearing officer found that it had not been established that the threat to Woods was in any way connected with the Union campaign, a finding supported by substantial evidence. Employee James testified that he did not consider the language directed at him and objected to by the company to be a threat of physical harm. James also ultimately voted against the Union.
In addition to the above mentioned "threats" of bodily harm, there were some eight incidents of other allegedly threatening statements made by various employees. A portion of these occurrences may be generally characterized as expressions of displeasure at views expressed against the Union, 2 or as forecasts of what would happen to certain employees if the Union was voted in. 3 We do not deem such comments as necessarily having an intimidating effect. We agree with the Board that the projection into the future and threats obviously beyond the speaker's power to accomplish were not of such character as to create an atmosphere of fear or reprisal.
Other allegedly threatening incidents are properly characterized as employees' joking or making vague and ambiguous off-hand comments concerning what could happen 4 rather than as serious threats of reprisal for failure to support the Union.
A final set of allegedly threatening incidents related to employee Carson, a known Union opponent. Despite these incidents, however, Carson stated that he did not change his views throughout the campaign but continued to speak against the Union. He subsequently served as an observer for the company in the election. We agree with the hearing officer that the incidents concerning Carson had no significant impact and did not contribute to a general atmosphere of fear and coercion.
In summary, we find that the statements or comments described as threatening or intimidating to have been so innocuous as to have had no real effect, or to have been so obviously beyond the apparent authority of the speakers to accomplish, that they did not destroy the laboratory conditions required for the election. It has been recognized by this Court that
(i)solated threats or coercion by the Union or its adherents are not sufficient to warrant setting an election aside. Unions and employers cannot prevent misdeeds or misstatements by persons over whom they have no control. It is our view that the employees had a fair opportunity to express and did express their free and untrammeled desires in the election in question. Matlock Truck Body and Trailer Corp. v. N.L.R.B., 495 F.2d 671, 673 (6th Cir.), cert. denied 419 U.S. 964, 95 S.Ct. 224, 42 L.Ed.2d 178 (1974).
There were also four occasions when anti-union employees sustained damage to their personal automobiles. Employee Edelman found one of the tires on his car cut while parked on the company lot. The flat was caused by "a nice clean cut" and the tire could not be repaired. Approximately a week prior to the election, employee Neil's truck, which had been parked overnight about two blocks from the plant, sustained damage when the fan went through the radiator about a mile and a half from where the truck started. A few days before the election, employee Frierson found a cut on a tire of his car parked in the company lot. About the same time, employee Skaggs testified, that the hood of his car had apparently been kicked in while parked at the plant.
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