Duralam, Inc.

National Labor Relations Board - Board DecisionsJul 28, 1987

284 N.L.R.B. 1419 (N.L.R.B. 1987)

DURALAM, INC. 1419 Duralam, Inc. and General Drivers and Dairy Em- ployees Union Local No. 563 affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Petitioner. Case 30-RC-4556 28 July 1987 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS BABSON AND S TEPHENS The National Labor Relations Board, by a three- member panel, has considered objections to an election held 10 April 1986 and the hearing offi- cer's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 24 for and 21 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, and finds that a certification of representative should be issued. The Employer's Objection 1 alleged, in sub- stance, that the Petitioner and/or its agents inter- fered with the election by threatening antiunion employees with physical harm, thereby causing them to fear for their personal safety and well- being if they did not vote for the Union. The Em- ployer further alleged that, even if the Petitioner and/or its agents were not responsible for the con- duct, the election should still be set aside because it was conducted in a general atmosphere of fear of reprisal. The hearing officer initially found that the al- leged statements were made by employees who were not agents of the Petitioner. Examining the character and circumstances of the alleged threats under Westwood Horizons Hotel, 270 NLRB 802 (1984), the hearing officer found that the threats were directed mostly at specific individuals; were not repeated by the union supporters who initially uttered them; were disseminated within the unit but were not repeated at or near the time of the elec- tion; and were partially neutralized by dissemina- The Employer has excepted to some of the judge's credibility find- ings. 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 On p. 30 of the hearing officer's report, the last sentence of the first paragraph pertaining to Objection 3 should read, "I find that the Em- ployer has failed to substantiate a causal connection between the Febru- ary 26 break-in and the Union or its supporters." Additionally, the cor- rect spelling for the last name of the son of the Employer's vice president is "Marturano." tion of statements claiming that some of the rumors circulating among the employees were untrue. The hearing officer further found, inter alia, no evi- dence that the threats were accompanied by acts of violence by the Petitioner against persons or prop- erty, or that any of the union supporters were ca- pable of carrying out the threats. Finally, the hear- ing officer found that because all the objectionable conduct occurred 2 or more weeks before the elec- tion, the effects of such conduct were dissipated by the time of the election. We agree with the hearing officer's findings and conclusions that, viewed individually and cumula- tively, the alleged threats of physical harm did not create a general atmosphere of fear and reprisal rendering a free choice in the election impossible.2 In response to our dissenting colleague, we have attached pertinent portions of the hearing officer's report regarding Objection 1. For the reasons set forth by the hearing officer, we disagree with our dissenting colleague that the character, content, and extent of dissemination of the remarks made by prounion employees Burr, Mohnen, and Kartes warrant setting aside the elec- tion when, as here, the tally is close. As the dissent acknowledges, Kartes' statement to employee Mischler was withdrawn, and Burr's statement ad- vocating violence, made at a union meeting, was neutralized by Union Agent Reardon. Additionally, regarding Burr's "dead meat" remark to employee Heenan, we agree with the hearing officer that the use of the phrase "dead meat" was not coercive. The credited testimony of employee Meyer indi- cates that Heenan himself occasionally used the 2 We agree with the hearing officer's finding that, on the facts of this case, employees Burr, Burdick, Mohnen, and Kartes were not acting as agents of the Petitioner during the campaign. In so doing, we find it un- necessary to pass on the cases cited by the hearing officer regarding this issue. In adopting the hearing officer's conclusion that the alleged threats of physical harm did not create a general atmosphere of fear and reprisal rendering a free choice in the election impossible, we disagree with her reliance on the subjective factor of whether the recipients of the threats acted in fear of the union supporters carrying out their threats. Additionally, although we adopt the hearing officer's conclusions re- garding Mohnen's alleged threat to employee Sherwood about the conse- quences that would ensue if Sherwood crossed a picket line, and the al- leged comment made by an unknown employee that the Respondent was supplying the Union with baseball bats in case of a strike, we disagree with the hearing officer's reliance on the fact that the comments con- cerned events that might occur in the future. Regarding the Employer's Objection 2, although we adopt the hearing officer's conclusion that Mohnen's alleged threat to employee Nennig of job loss if the Union did not prevail in the election is not objectionable, we find that the record does not support the hearing officer's finding that the alleged threat was neutralized by the Employer. Rather, we rely on the hearing officer's additional finding that threats of job loss for not sup- porting the union, made by one rank-and-file employee to another, are not objectionable, and that such statements can be readily evaluated by employees as being beyond the control of the union. See Rio de Oro Ura- nium Mines, 120 NLRB 91, 94 (1958); American Enka Co., 231 NLRB 1335, 1341-1342 (1977); Allis Chalmers Corp., 278 NLRB 561 (1986). 284 NLRB No. 125 1420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD phrase "dead meat." Consequently, the term ap- pears to represent nothing more than the rough banter that went on at this plant. Therefore, there are no objective grounds on which to conclude that the employees would have taken the comment seriously. Regarding Mohnen's remarks to employ- ee Sherwood about kneecaps being broken and about calling in employee Zuiches' motorcycle gang, although such remarks were repeated to an unknown number of employees, the record indi- cates that another employee found out from Zuiches that there was no basis for the "motorcy- cle reference" and disseminated this fact to 10-15 employees. This would tend to neutralize the impact of Mohnen's remarks and to expose his statement for what it apparently was: empty boast- ing and posturing. Moreover, as the hearing officer found, the conversation was part of the ongoing "debative" relationship between Mohnen and Sher- wood that continued after the incident. Finally, re- garding Mohnen's comment to employee Kwiat- kowski that "we will take care of you" or "we will remember you," we particularly rely on the hear- ing officer's findings that the comment was ambig- uous. The remark was not linked to any reference to violence, either express or implied, and there was no showing of factual circumstances that would lead a reasonable person to understand the comment as a threat of violence. Under all the circumstances, we cannot agree with the dissent's position that the third party con- duct here created a general atmosphere of fear and reprisal rendering a free choice in the election im- possible. 3 Accordingly, we adopt the hearing offi- cer's finding that such conduct does not warrant setting aside the election and her recommendation that the Union be certified. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for General Drivers and Dairy Employees Union Local No. 563 affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and that it is the exclusive collective-bargaining repre- sentative of the employees in the following appro- priate unit:4 3 See John M. Horn Lumber Co., 280 NLRB 593 (1986), in which, al- though the vote was close, the majority adopted the hearing officer's rec- ommendation that the election should not be set aside when one Hthreat was not linked in any way to the election, and the other occurred several weeks before the election and was typical of the coarse language and physical horseplay that occurred at the plant. 4 The hearing officer's description of the unit is corrected to conform to that in the Stipulated Election Agreement. All full-time and regular part-time production and maintenance employees, including truck- driver, shipping coordinator and graphic arts coordinator employed by the Employer at its facility located at 2621 West Everett Street, Appleton, Wisconsin; but excluding all office clerical employees, sales employees, manageri- al employees, guards and supervisors as de- fined in the Act. CHAIRMAN DarsoN, dissenting. I would set aside the election here for the same reasons I would have set aside the election in a growing number of cases: Avis Rent-A-Car System, 280 NLRB 580 (1986); John M. Horn Lumber Co., 280 NLRB 593 (1986); Sequatchie Valley Coal Corp., 281 NLRB 726 (1986); and Pony Express Courier Corp., 282 NLRB 265 (1986) Employees who supported the Union threatened violence against employees who opposed it. Contrary to the hearing officer and my colleagues, I find the ac- tions of these union supporters created a general at- mosphere of fear of reprisals that made a free elec- tion impossible. In this case, the hearing officer found four inci- dents occurred where prounion employees threat- ened violence and adverse consequences to em- ployees who did not support the Union. In each case the remarks of the prounion employees were disseminated to others in a unit of some 45 employ- ees. The union subsequently won the election by a vote of 24 to 21. Both_ the Board and the courts have emphasized the intensified effect of threats of violence occurring, as here, in a small unit, where the election tally is close. 1 In such circumstances, conduct by third parties is subject to greater scruti- ny than in situations when the unit is large and the margin of victory is substantial. In my opinion, the conduct at issue in this case cannot withstand such scrutiny. Approximately 3 weeks before the election, em- ployee Heenan wore a button circulated by union supporters that he had altered to read "No Free Lunch." Employee Burr, a union supporter, asked Heenan if he was kidding with the button and stated, "Well, kidding or not, if we lose by one vote you are dead meat." Heenan testified that he and Burr often joked together at work, but this time Burr was not smiling. Heenan told three other employees of Burr's remark. The hearing officer found that the two employees had a "jocular rela- tionship" and the comment was Simply part of that ongoing relationship. The hearing officer found 1 See, e.g., RJR Archer, Inc., 274 NLRB 335 (1985), and Flowers Trans- portation Co. v. NLRB, 739 F.2d 214 (6th Cir. 1984). DURALAM, INC. 1421 that the meaning of "dead meat" was "uncertain" and did not specify a particular act of retribution. Employee Kwiatkowski attended a union meet- ing in March where 12 employees were reviewing a list of employees' names who supported (or did not support) the Union. Kwiatkowski credibly tes- tified that Burr said, "We can use violence to per- suade them," and then laughed. Kwiatkowski stated that Burr is a "joker." Union Business Agent Reardon told the employees at the meeting that the Union did not condone violence and they should keep their "noses clean." The hearing officer rea- soned that Burr may have used poor judgment in joking about violence, but that Business Agent Reardon neutralized Burr's comment by asserting that the Union did not condone violence. About 1 month before the election employees Sherwood and Mohnen, who frequently talked with each other about various topics, talked about the Union and what would happen if a strike oc- curred. Mohnen stated that there were ways of stopping people, that you could have your knee- caps shot off or broken. Sherwood then said that if his boss told him to be at work, he would be there, that he could bring in a gun and could use his "4 x 4" vehicle. Mohnen said that a motorcycle gang could be hired to break his legs and "stuff." Within a day, Sherwood reported this conversation to the plant manager and to a foreman, who told him they would take care of it. There is no evidence that the Employer took any action with regard to the conversation. Mohnen's comments were dis- seminated among the employees in the plant. The hearing officer concluded that these comments were consistent with Sherwood and Mohnen's on- going debating style over opposing viewpoints and that Sherwood neutralized Molmen's comments with his own reference to violence. About 2 weeks before the election, Mohnen told employee Kwiatkowski, "Frank, I hear you are telling people this Union won't hold air." Kwiat- kowski said he was entitled to his own opinions. Mohnen then asked Kwiatkowski to come back and talk about this later. When Kwiatkowski re- turned later in the day, Mohnen told him "When the smoke clears and the Union is in, we will re- member you," or "We will take care of you Mr. Frankie Foreman." Kwiatkowski told at least two other employees of this incident. The hearing offi- cer found Mohnen's remark was ambiguous and there was little basis for Kwiatkowski to be con- cerned because Kwiatkowski was younger and in better physical condition than Mohnen. In mid-March, employee Kartes told employee Mischler, "Don't play both sides of the fence or you will get your nose nipped." Mischler related this conversation to three employees, including Harvey Hoes. Later that day, Hoes told Kartes there were certain things a person could get fired for, and if it were not for Mischler holding back, Hoes would have gone to management. Still later on the same afternoon, ICartes spoke to Mischler again, saying he did not mean anything by the "nose nip" comment, and Mischler responded that he knew that and did not get the wrong idea from the comment. The hearing officer found nothing objectionable in Kartes' comment to Mischler be- cause both later came to an understanding that neu- tralized the alleged threat. I do not agree with the hearing officer's analysis of the conduct at issue here. With respect to the encounter between Heenan and Burr, I cannot accept the conclusion that Burr's threat to Heenan was merely part of an ongoing jocular relationship. First, Burr himself took the comment out of the context of such a relationship by telling Heenan that "kidding or not," he would be "dead meat." Second, Heenan told three other employees about Burr's remark; it seems most improbable that Heenan would have bothered to repeat the remark if it were just one of many jokes exchanged with Burr. Finally, there is nothing ambiguous about the term "dead meat." Regardless of its precise mean- ing, the context of the comment makes clear that it indicated adverse physical consequences. The only "ambiguity" is the failure to specify the precise means that might be employed to render Heenan into "dead meat." If the Union lost by one vote, Burr would assume that Heenan's vote tipped the scale against the Union and Heenan could expect some form of serious retaliation. Another factor weighing against the finding that Burr's comment was in jest is Burr's conduct at the union meeting where he "jokingly" referred to using violence to persuade employees to vote for the Union. Business Agent Reardon apparently did not think it was just a joke because he saw fit to admonish employees against the use of violence. Although I agree with the hearing officer's finding that Reardon's com- ments tended to neutralize Burr's call for violence, I fmd this incident shows that Burr invited vio- lence on more than one occasion and thus supports the conclusion that Burr was not joking when he made the "dead meat" remark to Heenan. Similarly, I cannot agree that Mohnen's remarks to Sherwood were part of a debate rather than threats of violence. Mohnen's comments were very specific. He spoke of hiring a motorcycle gang that would shoot off Sherwood's kneecaps, break his legs, and "stuff." When an employer made a similar remark to employees, the Board found an unlawful threat of bodily harm. In A.A. Superior Ambulance 1422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Service, 263 NLRB 499 (1982), a supervisor told employees that the owner of the business was not going to allow the union to come in: "he had ways of taking care of it. If he had to, he would shut down to one or two cars. . . . Either that or he'd turn Darrell and his friends loose." (Darrell's friends were bikers.) Id. at 506. If the Board finds such an employer remark to be an unlawful threat of bodily harm, I do not see how it can fail to find Mohnen's remarks here to be threats of violence. Nor can the Board reasonably find Mohnen's re- marks were not objectionable because they were a form of light banter. The Board has found references to specific forms of violence objectionable even in a joking context. Sub-Zero Freezer, 271 NLRB 47 (1984), vacating 265 NLRB 1521 (1982). Further, Sherwood took Mohnen's remarks seriously enough to report them to management. Thus, he does not appear to have viewed the exchanges with Mohnen as merely a friendly debate. Finally, I see no merit whatsoever in the hearing officer's finding that Sherwood's comments about bringing in a gun neutralized Mohnen's threats to shoot off kneecaps. If any- thing, Sherwood's reaction heightened the atmos- phere of violence. The same employee who threatened Sherwood with physical abuse by a motorcycle gang accused employee Kwiatkowski of speaking against the Union and told him "we will take care of you" when the Union gets in. I do not agree with the hearing officer's fmding that this comment was am- biguous. Incidents of this sort in an election cam- paign cannot be viewed in isolation. Even in isola- tion, the comment "take care of you" indicates some form of retaliation for speaking against the Union. In context with the other remarks at issue here, particularly those made by Mohnen, there is no doubt that Mohnen's comment to Kwiatkowski threatened him with physical consequences should the Union win. That Kwiatkowski was larger and more fit than Mohnen is not dispositive; Mohnen said, "we," not "I," will "take care of you." In any event, this agency presumably does not permit these decisions to turn on an employee's willing- ness or ability to use self-help. , Finally, I do not agree with the hearing officer's treatment of Kartes' threat that Mischler would get his "nose nipped" if he played both sides of the fence. True, Kartes essentially withdrew this threat after employee Hoes told him it was something for which he could be fired. Nevertheless, Kartes' comment is indicative of the general atmosphere of threats of physical harm that surrounded this elec- tion campaign. Had such threats been withdrawn as was Kartes', a different atmosphere would have prevailed, dictating a different result. However, as seen above, only one threat was withdrawn and only one reference to violence was countered by a union agent. In all other cases, the threats occurred unchecked and were actually disseminated among the 45 employees in the unit. This state of affairs cannot be tolerated by an Agency that is charged with the responsibility in representation elections to provide a "laboratory in which an experiment can be conducted under conditions as nearly ideal as possible." General Shoe Corp., 77 NLRB 124, 127 (1948). To permit this election to stand is to abdi- cate the Board's statutory duty to establish norma- tive standards that discourage violence in the labor relations context. See the discussion in Avis Rent-A- Car System, above (dissent). I would set aside the election. APPENDIX THE OBJECTIONS Objection I: In Objection 1, the Employer contends the the Union and/or its agents threatened physical harm to employees for opposing the Union, causing them to fear for their personal safety and well-being if they did not vote for the Union. The Employer additionally contends that even if the Union and/or its agents were not responsible for said conduct, nonetheless the election should be set aside because of the general atmosphere of fear of repris- al in which the election was conducted. In the following sections, I will consider the conduct relied upon by the Employer in support of its objections. Incidents Involving Gary Burr and Lance Burdick: Burr and Heenan: The Employer contends that employee Gary Burr threatened employee Terriod (Terry) Heenan at the plant, that if they (the Union) lost by one vote, Heenan would be "dead meat." Sometime in mid-March, Heenan was passing the lami- nator machines that Gary Burr was working on. During this time, buttons had been passed around (by persons unknown) for the 'union supporters to wear that read "Vote for Free Lunch." Heenan states he had placed a piece of tape on which he wrote "No" and placed it over the words "Vote for", so that his button read "No Free Lunch." He was wearing this button at the time he walked past Burr, who motioned Heenan over to him. Heenan testified that Burr asked him if he was kidding, to which Heenan did not respond; and then Burr stated, "Well, kidding or not, if we lose by one vote you are dead meat." Heenan stated that usually Burr likes to goof around many times and is smiling when he talks to Heenan. However, this time, Heenan testified that Burr was not smiling when he made the statement. Heenan also testified that sometime prior to the state- ment noted above, Heenan, knowing that Burr liked to DURALAM, INC. 1423 joke at work, wore a hat that he had taped the word "No" to the inside viser. When Heenan passed Burr at work, he flipped up the "No" to Burr, knowing he would get a reaction from Burr. This is confirmed by Burr's testimony, but Burr added that the hat was worn on the day of the election as well. Heenan testified that if he did not "instigate" situations with Burr, Burr "insti- gated" situations with him, and that their "joking" had been going on for about a year prior to the election. Heenan testified that he did not report the incident to management after it occurred; but only did so after the election when management was soliciting such informa- tion. Heenan also could not recall Burr ever using the phrase "you are dead meat" prior to this occasion, nor the phrase being used by himself or other employees in the plant. Burr testified that Heenan often will "razz" him, "to get a spark out of me." Burr recalled that while the button in question did originally state "Vote for a Free Lunch", it was altered to read "Vote No." Burr recalls upon seeing Heenan wear the button, Burr replied words to the effect, "What are you wearing that for? Get that thing out of here. Don's come around here with that, that makes me nervous." Burr denies her ever used the words "dead meat" or threatened Heenan in any other way. Burr also denies ever using the words "dead meat" on any other prior occasion. Heenan told three other employees in the plant of Burr's comments. Considering the size of the unit, 45 em- ployees, and testimony on the record, it is reasonable to conclude rumors, conversations, statements, etc. as a practice, are easily and frequently disseminated through- out the plant, including those allegedly uttered by Burr as noted above. Heenan's responses to both direct and cross examina- tion were thoughtful, and direct answers, and his recall to events appeared quite clear. While Burr's demeanor also appeared responsive on both direct and cross exami- nation, I cannot credit Burr's version of this event. It is unreasonable that a "vote no" or a "no free lunch" button would cause Burr to make extended demonstra- tions to Heenan on the one occasion he wore a button, when Burr apparently said nothing to the several occa- sions Heenan wore a hat with "no" taped on the inside visor, which was frequently flipped for Burr's reaction during the time prior to the election. It seems more plau- sible to me that the cumulative "razzing" effect by Heenan with the hat and button more likely elicited Burr's response as testified by Heenan on the day Heenan wore the modified button, than Burr's sudden nervousness at seeing something to indicate a negative response to the Union. I, therefore, credit Heenan's testi- mony. Additionally, Petitioner's witness, Meyer, testified Heenan used the "dead meat" phrase during an im- promptu baseball game shortly before the petition was filed. Burdick also testified Heenan used the same phrase about 6 months prior to the hearing with reference to the manner Burdick addressed Heenan. I found Meyer thoughtful and responsive on both direct and cross exam- ination and thus credible. For reasons stated later in this report, I do have reservations as to Burdick's testimony and would not credit it. Nonetheless, I would still credit Heenan's version of the exchange between himself and Burt for the aforementioned reasons. Burr and Burdick Advocating Violence: The Employer contends that at a Union meeting in mid to late March, conducted by Union Organizer David Reardon, Burr advocated using violence to persuade em- ployees to vote for the Union. It is also contended by the Employer that employee Lance Burdick also advocated using violence at a meeting. Employee Richard Kwiatkowski testified that he at- tended a meeting in March (the Union confirmed he at- tended meetings on March 1 and 26). At one meeting those present went over a list consisting of employees' names who supported (or did not support) the Union. At the meeting attended by 12 employees, Kwiatkowski re- called Burr making a "joking" comment, as they went over the list, that, "We can use violence to persuade them", and then laughing about it. Kwiatkowski testified that he knew Burr was joking because that was his, Burr's, style, that Burr is a joker. Kwiatkowski said Reardon replied to Burr's comments, to straighten Burr out that it was unlawful, but he was not sure exactly what Reardon said. Employee Kurt Klein testified he attended one Union meeting the latter part of March with 12 to 15 employ- ees, where someone (he did not remember who) casually joked about how other union activities had gotten out of hand, and if the Employer's employees had to strike that type of thing might happen. This "joking" back and forth lasted about 2 to 3 minutes. Klein recalled that pos- sibly three employees were involved in the conyersation, including himself, Burdick and another employee whose name he did not recall. Klein did not recall that Reardon had made any statements to the effect that sometimes vi- olence may occur during a strike, but that it is not the Union that does the violence. The meeting Klein attended was prior to the Employ- er showing a film on March 31 and April 1, depicting strikes and violence. The record does not reflect whether Kwiatkowski and Klein were at the same meeting where the Burr/Burdick remarks were allegedly made. Kwiatkowski then testified that after the meeting he attended, he went to a local bar with some other em- ployees, including Burdick. Kwiatkowski admitted that they were there 3 to 4 hours, and that he had been drinking a lot. Kwiatkowski stated that near the end of their stay at the bar, Burdick stated he heard what Burr had said (about violence) and Burdick was mad about it. However, due to the apparently generous imbibing of the evening, he was not sure if Burdick said he (Burdick) and Burr talked about it recently or that Burdick would have to talk with Burr and straighten him out. Kwiat- kowski said he had difficulty in recalling his conversa- tion with Burdick at the bar.' Burr denies that he made any statements, jokingly or otherwise, regarding violence at the March 26 Union meeting. Burr testified that Klein brought up the Hormel strike, and that Reardon stated that the Union did not condone violence, would not stand for violence and that 1424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Reardon's comments against violence were repeated at each meeting Burr attended. This was corroborated by Reardon. Burdick testified that Burr had not made any com- ments during a Union meeting on March 26 about vio- lence. After being shown an affidavit he provided the Regional Office, Burdick did recall that he told the Board Agent that he remembered Burr and other em- ployees talking about violence prior to a Union meeting that occurred after the Employer had shown the movie referred to earlier. With regard to the conversation at the bar after the March 26 meeting, Burdick testified he was upset over a remark Burr made to him before Bur- dick went to the bar. Burdick stated at the bar, he, Kwiatkowski (and others) talked about the movie "FIST" and the violence depicted, after which those present started to joke with each other calling Burdick an "inconspicuous speck of dirt and Puerto Rican." Bur- dick said he told Kwiatkowski he was sick of being called that and would have to talk with Burr to tell Burr to stop doing that. I would credit Kwiatkowski as his manner was open and thoughtful on both direct and cross examination. His truthfulness as to recall of events was indicated by his admission he had been drinking at the bar after the meet- ing and could not recall the exact conversation' at the bar, which was why he did not sign a statement for the Regional Office; statements on which the Employer ap- parently was relying upon to further support its point on the remarks of violence. As noted above, Burr was re- sponsive and sometimes animated while testifying. How- ever as to the alleged remark of violence, in view of Burr's tendency to "joke", I would credit Kwiatkowski. Reardon's testimony was also open and responsive on both direct and cross examination. I find nothing in his testimony or demeanor to discredit him. Thus, I credit Reardon's testimony that he told employees at meetings he did not condone violence and told them to keep their noses clean. I would credit Burr as to Reardon's re- marks. Klein is currently a supervisor, and it is arguable that his testimony could be favored to be in management's in- terest. Nonetheless, his responses were direct and ap- peared forthright. Burdick appeared responsive on both cross and direct examination. However, Burdick's affida- vit, Board Exhibit 2, referring to testimony on the topic of violence, appears to be inconsistent with his testimony at hearing. For that reason, I would not credit Burdick's testimony with reference to comments made about vio- lence by Burr or with Kwiatkowski. I, therefore, credit Klein's testimony. Incidents Involving Andy Mohnen: Mohnen and Sherwood Incident: The Employer contends that about 1 month before the April 9 election, Mohnen told Glen "Woody" Sherwood that if Sherwood crossed the picket line, he would have his knees broken, Mohnen would bring in his 30-0-6 (deer hunting rifle), and that Molmen would get employ- ee Jim Zuiches to bring in his motorcycle gang for $50 to break some bones. Sherwood testified that as a laminator, he works in the same area and shift as Mohnen. They frequently spend the day talking with each other about various topics, which are sometimes characterized as "debates," includ- ing frequent conversations about the Union during the period prior to the election. During one of their conver- sations about the Union, about 1 month before the elec- tion, they talked about getting paid off if they went on strike, and Sherwood said if Mohnen could guarantee him a full salary, in writing, he would join the Union. After some more talk, Sherwood then commented that Mohnen was trying to make him join the Union and he would not do so. This was followed by some comments that there were ways of stopping people, like crossing picket lines that you could have your kneecaps shot off or broken. Sherwood said that if his boss told him to be there at 7:30 in the morning, he was going to be at work. Sherwood said he may have mentioned that he had his "4 by 4" vehicle and would use that. Sherwood respond- ed he could bring in a gun too. Mohnen told him that people could be hired to break his legs and "stuff" with a motorcycle gang, apparently through Zuiches. Within a day of this conversation, Sherwood reported it to plant manager Clyde Holmes and foreman Mark Becker, who told Sherwood they would take care of it. The record is devoid of any action the Employer may have taken with regard to this conversation. Again, it would appear from the testimony that the comments about the 30-0-6, Zuiches' motorcycle gang, etc. were disseminated among the employees in the plant. Frank Kwiatkowski testified upon learning sometime prior to the election that Zuiches' motorcycle gang could be hired in a picketline situation, on his own, con- fronted Zuiches about this matter. Kwiatkowski asked Zuiches if this statement was true, that Zuiches could hire his old motorcycle gang or if Zuiches had heard this from anyone else. Kwiatkowski testified that Zuiches said he knew nothing of the matter and that it was not true, that he did not know any friends who would, he had not made the statement, and was not about to even do that. Zuiches did not testify. When Frank Kwiat- kowski learned of this information from Zuiches, he re- layed this conversation to an estimated 10 to 15 employ- ees. Mohen testified that his working relationship with Sherwood is a "joking, debative kind of friendship." Molmen's version of the conversation in question is that Sherwood, for no understandable reason, walked up to Mohnen and said, "If there is a strike, I am going to cross the picket line and you ain't going to stop me be- cause I am bringing my 12 guage [sic] shotgun." Mohnen said he replied to Sherwood that he would bring his 30- 0-6. Mohnen recalled nothing further of the conversa- tion. Mohnen denies he ever made comments to Sher- wood about getting Zuiches' motorcycle gang for $50 to come in and break some bones, or knees. Petitioner's witness, employee Harold Meyer, over- heard part of the Mohnen-Sherwood exchange. He also describes the relationship between the two men as "joking." Meyer recalls Mohnen and Sherwood talking about not being paid while on the picket line. According DURALAM, INC. 1425 to Meyer, Sherwood said he would cross the picket line with his gun to get paid, to work his machine. Meyer re- called that Mohnen replied that he would just have to bring his 30-0-6. Meyer did not hear any discussion be- tween Mohnen and Sherwood relating to the Zuiches' motorcycle gang. I would credit Mohnen's testimony. While he gave complete answers on direct examination by the Union, he could not recall that same testimony on cross exami- nation by either the Employer or the Regional Directors' representative only a short time later. He appeared eva- sive and vague on cross examination on the same topics on which he had so freely testified only a few minutes before. Sherwood, on the other hand, gave thoughtful, open testimony on direct and cross examination. He ad- mitted he was a reluctant witness for the Employer; nonetheless, he was responsive equally on direct and cross examination. Petitioner's witness Meyer overheard only a portion of the exchange, and his recollection only differs from Sherwood as to who first said they would bring in a gun. I found Meyer thoughtful and responsive on both direct and cross examination. I find nothing in his demeanor to discredit his testimony. While Meyer supports Mohnen's version that Sherwood first said he would bring in a gun, I still cannot credit Mohnen's testi- mony for the reasons noted above. Mohnen and Frank Kwiatkowski Incident: The Employer contends that at the end of March, Mohnen threatened Frank Kwiatkowski, that when the Union gets in and the smoke clears, "we will take care of you." About 2 weeks before the election, while Frank Kwiatkowski was in supervisory training, he passed Mohnen's work area. Kwiatkowski testified Mohnen said, "Frank, I hear you are telling people this Union won't hold air." Kwiatkowski told Molmen he was enti- tled to his own opinions. Kwiatkowski had frequently spoken about his antiunion preferences. Mohnen then asked Kwiatkowski to come back and talk about this later on. The same day, Kwiatkowski returned and Mohnen waved him over to his work area. Mohnen than told him, "When the smoke clears and the Union is in, we will remember you," or "we will take care of you, Mr. Frankie Foreman." Kwiatkowski told at least two fellow employees of the comment, but did not report the incident to the Employer until after the election. Mohnen testified that he heard that Frank Kwiat- kowski had gone from pro-union to anti-union. When Kwiatkowski had started his foreman training, Mohnen said he walked up to Kwiatkowski and said, "When this thing is all over, we will know who is at fault if we lose." He denies he made any threat to Kwiatkowski, and does not remember that he said he "would take care" of Kwiatkowski. I would not credit Mohnen's testimony for the reasons stated above. Kwiatkowski gave direct and thoughtful responses on both direct and cross examination, and his demeanor was forthright. I credit Kwiatkowsid's version of this event. Incident Involving John Kartes and Peter Mischler: The Employer contends that employee John Kartes told Pete Mischier that if he did not vote for the Union, he would end up getting his nose nipped. Unlike Bur- dick, Burr and Mohnen, the Employer at hearing did not contend that 'Cartes was an agent of the Union or acted as an agent of the Union. Mischler, who works in shipping, testified that in about mid-March, truckdriver John Kartes approached him and said, "Don't play both sides of the fence or you will get your nose nipped." Mischier asked Kartes what he was talking about. Kartes allegedly told him that Mohnen had told Kartes that Mischler was playing both sides of the fence. Mischler responded that Mohnen ought to tell him to his face or otherwise shut his mouth. Mischier never confronted Mohnen about this. Mischler related his conversation to three employees, including Harvey Hoes. Later the same day, Mischier had another conversation with Kartes where Kartes admitted he had better watch what he says because every time he said something, he said it wrong. Kartes told Mischier he was not supposed to get the wrong idea, Mischier responded he did not get the wrong idea, or something to that effect, concerning the nose nip comment. Mischier did not report the incident to management. Kartes testified that he was upset over a hearsay remark he heard from Terry Heenan concerning a confi- dential conversation between Hoes and Mischler about Kartes. Later that day, Kartes testified he saw Mischier and said, "I think it would be a good idea if you keep your head down at this point, because if you do play both sides of the fence you can get your nose nipped." Kartes stated Mischier asked where he heard it from, and Kartes said, "somebody" without mentioning who (but meaning Heenan). Mischier told Kartes to have that person talk to lin' if he wanted anything. ICartes stated he meant he did not want to lose friends when he made the nose nipped comment, and that he did not intend any physical harm. Kartes stated after his conversation with Mischier, Hoes told Kartes there are certain things a person could get fired for, and if it were not for Mischier holding back, not wanting to go further, Hoes would have run it straight up to management. Later that same afternoon, Kartes confirmed he spoke to Mischier again, saying he did not mean anything by the comment. Mischier re- sponded he knew that. I fmd both Kartes and Mischler credible. Both gave straight-forward responsive testimony on direct and cross examination. The "nose nipped" comment is con- sistent by both men. Their subsequent conversation, while differing only as to precise detail, is as far as con- tent, basically the same. The Question of Agency Status: The Employer argues that Burr, Burdick, Mohnen, and Kartes acted as agents of the Union and in its Brief 1426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to include John Kartes. 4 Petitioner's testimony indicates that there was no in-plant organizing committee, none of these men held any union office during the election cam- paign, and none of them had any authority to speak on behalf of the Union. The Employer presented no evi- dence to the contrary. Burr, Burdick, and Mohnen, from the testimony given were among several employees who were outspoken and/or active on behalf of the Union. They, as well as others, on their own volition, did take some extra union authorization cards and secured a few signatures; but the record would indicate that the vast majority of the cards were signed at union meetings con- ducted by Reardon. Thus, the Board has repeatedly held that being active, or outspoken, in a union's organizing campaign, does not make the employee an agent of the union, absent evidence that the union authorized or con- doned the alleged objectionable conduct. Tuf-Flex Glass, 265 NLRB No. 101 (1982), enfd. 715 F.2d 291, 114 LRRM 2226 at 2231 (7th Cir. 1983); Six Flags Over Mid- America, 253 NLRB 111(1980); Owens-Corning Fiberglass Corp., 179 NLRB 219 (1969), enfd. 437 F.2d 933, 75 LRRM 2849 (4th Cir. 1970). Nor is card solicitation suf- ficient to show agency status. Cambridge Wire, 256 NLRB 1135, 107 LRRM 1393, at 1398 (1981), enfd. 110 LRRM 2167 (4th Cir. 1982), Firestone Steel, 235 NLRB 548, 550, 98 LRRM 1014 (1978). Testimony by the Petitioner established that Reardon told the employees assembled at the meeting to "keep their noses clean." More specifically, he told them that the Union did not condone violence and never condones violence. This is further supported by employer witness Richard Kwiatkowski recalling Reardon advising Burr that it was illegal to use violence in response to Burr's remark about violence. Nor do I fmd Reardon's remarks about the February 26 vandalism to Martunaro's car an indication the Union supported violence, as conversation was rampant as to doubts, as well as rumors, as to who perpetuated the vandalism. For the reasons stated later in this report, I would not find this alleged comment of Reardon to be condoning violence. Based upon the foregoing, I would not fmd that Burr, Burdick, Molmen, or Kartes were agents of the Petition- er during the pre-election period. I shall, therefore, evaluate the objections using the third-party misconduct standards Objection No. I: Incidents Involving Burr and Burdick: Burr and Heenan: Having credited Heenan's version of the "dead meat" comment, I note that Heenan and Burr have enjoyed a friendly, jocular relationship over the past year. Heenan admits that he has worn a hat with "no" on the visor 4 The Employer in his brief has also argued that Kartes was an agent of the Union, along with Burr, Burdick, and Mohnen. However, at hear- ing Employer's counsel clearly indicated the opposite (Tr. 280, lines 18— 23; Tr. 281, lines 4-10). While the record does not contain any testimony from Kartes as to Ins agency status, nor did any part pursue that issue with Kartes, I will consider the question of Kartes' agency status based on the testimony which may bear on his union activity. and deliberately flipped it for Burr's view and reaction to get a rise out of Burr, a known union supporter. It would appear from Heenan's testimony that he did not take Burr's remark too seriously, as he did not report it to management until after the election. I would view their exchange as one within their on-going joking rela- tionship, and that the remark was not a threat. IDAB, Inc., 269 NLRB 554 at 559, 569 (1984), 770 F.2d 991 (11th Cir. 1985); USM Corp., 209 NLRB 956 (1974), enfd. 517 F.2d 971, 89 LRRM 2585 (6th Cir. 1975). The Employer argues that jocular exchanges prior or subsequent to the "dead meat" comment, do not detract from the seriousness of the alleged threat. Sub-Zero Freezer, 271 NLRB 47 (1984), vacating 265 NLRB 1521 (1982). I find that case distinguishable from the instant situation. In that case those threats specified particular acts of retribution, a broken neck and damage to a car, after which the individual's vehicle sustained flat tires. The meaning of "dead meat" is uncertain and could mean anything from some physical reprisal to a generic phrase denoting one's pleasure to constant teasing and/or a joke that has gone sour. In Electra Food Machinery, 279 NLRB No. 40 (1986), the Board reiterated that subjec- tive reactions of employees are irrelevant to the question of whether there was, in fact, objectionable conduct. The Board focus is on ". . . reasonableness of employee fears as reflected by objective fact," Anchor Inn Hotel, 262 NLRB 1137, 1139 (1982). Considering the fact that here, Heenan continued to "razz" Burr by wearing the hat with the word "no" taped on the visor, which he took much opportunity to display to Burr, indicates Heenan did not have any reasonable basis to fear that Burr would carry out his comment on "dead meat" whatever it meant. There is no evidence in the record to reflect that any fear or anxiety was instilled in Heenan because of these remarks, since he did not report this to manage- ment until after the election. Therefore, I do not believe the Burr-Heenan incident was objectionable. Remark of Violence by Burr at Union Meeting: Again, according to the Employer's credited witness, Richard Kwiatkowski, Burr engaged in a joking com- ment about violence. While Burr may have used poor judgment in making a joke about the use of violence, Kwiatkowski testified that Reardon neutralized Burr's remark by admonishing him. Kwiatkowski did not take the comment seriously. Richard told this comment to his brother Frank and even though at the time Frank was in the running for a foreman's position, he did not report it to management until after the election. Frank Kwiat- kowski also had heard from Reardon himself in a meet- ing with Jim Zuiches that the Union did not condone vi- olence. Thus, the remark is isolated and was neutralized by Reardon at the meeting. Therefore, I find the remark by Burr not threatening and not objectionable. IDAB, Inc., supra; Anchor Inn Hotel, supra. DURALAM, INC. 1427 Remarks of Violence by Burdick: Klein was apparently a willing participant in the joking taking place at a union meeting, at which a remark was made about violence. Also present was Bur- dick. Again, Klein who also was in the running for a foreman's position, did not report the matter to the Em- ployer until after the election. Considering the context of the remark, there is no testimony that Klein had a rea- sonable basis to believe Burdick would carry it out, and there was the credited testimony of Reardon that he told employees at meetings the Union did not condone vio- lence. The remark, if made, was neutralized the same evening. While I do credit Richard Kwiatkowski's testimony as to his conversation with Burdick at the bar after a union meeting, Kwiatkowski had been generously imbibing for several hours, and his recollection of those events are somewhat incomplete. As such, any comments made by Burdick about Burr's alleged use of the word violence, are unsubstantiated by Kwiatkowski's admitted spotty recollection. I would find that the Employer has not sus- tained its burden of proof in demonstrating that Burdick advocated the use of violence either at a union meeting or at the bar following a meeting. • Therefore, I fmd that the alleged remarks were not made by Burdick, Incidents Involving Andy Mohnen: Mohnen-Sherwood Incident: The record reflects that Sherwood and Mohnen, working in the same area, spend much of their time in discussion or debate, and their relationship was jocular. Sherwood and Mohnen exchanged tit for tat what they would do "if" there was a picket line at some unspecified time in the future. Their exchange as described by em- ployer witness Sherwood appears consistent with their on-going debative style over opposing viewpoints. I would fmd that Sherwood did not have a reasonable ex- pectation or basis to fear Mohnen's comments because of his own response to Mohnen. While Sherwood did report the conversation to the Employer, the record is devoid of any action the Employer may have taken to restrain any future action by Mohnen. I do consider that Sherwood was a reluctant witness by his own admission and would just as soon forget about the whole incident, but for the Employer. As to their conversation on picket lines, I would consider it a part of their on-going deba- tive relationship. IDAB, Inc., supra. Sherwood neutral- ized Mohnen's comments with his own, as a sort of "top that one if you can" approach. Farmtronix, 274 NLRB No. 118 (1985), cited by the Employer is distinguishable. An employee who was threatened, responded in kind. However, because the Re- gional Director there issued a report on objections after an investigation, without a hearing, the Board directed a hearing to ascertain whether such a response "might" have served to aggravate the general atmosphere of fear and violence and whether "the election was conducted in a general atmosphere of fear of reprisal." Thus, the issue was not formally presented whether the exchange of threats is objectionable conduct. In addition, Sherwood and Mohnen were talking about an event that might happen in the unspecified future. Such remarks were confined to Sherwood and Mohnen, although Sherwood testified he told a few other employ- ees of their comments. The remarks of picket line con- duct are unrelated to the election. Newly Weds, Inc., 270 NLRB 357, 118 LRRM 3213 (1st Cir. 1985). Further, there is nothing to indicate that the remarks were repeat- ed by Mohnen. The Employer argues that threats of future events, such as strikes, are sufficient to overturn an election, citing Home & Industrial Disposal, 266 NLRB 100 (1983). However, that case is also distinguishable in that an agent of the Union, 1 hour before the election, told an employee (in a unit of 11 employees), that if he helped the employer in a strike, he could end up in the hospital like another employer during a prior strike. Thus that employee could reasonably believe that if the union pre- vailed and he opposed them in the future, the union would punish him. Here, comments mady by Molmen, who is not an agent of the Union, would have less effect on Sherwood. Owens-Corning, supra. Sherwood (estimat- ed in his late 40's to early 50's) impressed me as being a feisty independent thinker, as evidenced by his exchange with Mohnen. Thus, I doubt that Sherwood had a rea- sonable basis to fear that Mohnen would carry out his threats to him, any more than Sherwood would to Mohnen. IDAB, supra. There also was no evidence that Mohnen had engaged in any kind of violence or miscon- duct in the past. Therefore, I find that the alleged remarks made by Mohnen are not threatening and not objectionable. Mohnen-Frank Kwiatkowski Incident: This incident involves an ambiguous threat, "we'll take care of you" or "remember you." Corriveau & Routhier, 171 NLRB 787 (1968). Kwiatkowski testified he did not consider this to mean a physical threat was involved. Again, Kwiatkowski did not report the incident to man- agement until after the election. 1 would also observe that another reason Kwiatkowski may have had little basis to be concerned is that he is a man in his late 20's early 30's, and very fit and muscular. Mohnen, who is probably in his late 30's to early 40's, is not muscular and not quite as fit. While this threat did occur about 2 weeks before the election and was disseminated by Kwiatkowski to at least two fellow employees, the threat was limited to Kwiatkowski and was not repeated. Therefore, I find that the alleged remark made by Mohnen is not threatening and not objectionable. Incidents Involving Kartes and Mischler: Kartes admits making the "nose nipped" statement to Mischler, but later both came to an understanding which I believe neutralized the alleged threat. As this incident happened about a month before the election there was adequate time for the incident to dissipate. Again, the comment was not repeated thereafter. There is no testi- 1428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mony that Mischler reported the incident to management at the time it occurred. Thus, I view the 'Cartes statement as isolated and neu- tralized. Therefore, I find that the alleged remark made by Kartes is not threatening or objectionable. FINAL OBJECTIONS 1, 2, AND 3 In addition to my separate conclusions set forth above, I have considered the cumulative impact of all the con- duct alleged objectionable by Employer's Objections 1, 2, and 3 to determine whether such conduct created an atmoshpere of fear and violence such as to interfere with employee's free choice and warrant setting aside the election. The Employer argues that Westwood Horizons, 270 NLRB 803 (1984), and RJR Archer, Inc., 274 NLRB 335 (1985), the misconduct committed was sufficiently aggra- vated to create a coercive atmosphere interfering with free choice. In Westwood, 2 weeks prior to the election, an employee threatened to beat up at least three employ- ees if they did not support the Union, which threat was repeated by that individual and others; and on the day of the election the prounion employee forcefully escorted the other employee to the polling site. The Board held there that the threats coupled with the misconduct on the day of the election, did create a general atmosphere of fear and reprisal interfering with the election. In RJR Archer, an employee a week or two before the election, threatened harm to two employees' home and van and family, which threats were widely disseminated. The person who received the threat to their family also received anonymous phone calls at night. The Board held that threats cumulatively viewed, created an atmos- phere of fear and coercion in which a fair election could not be held. The Employer also relies on Electra Food Machinery, supra, where people were told they would get in trouble, and messages were daily written on bathroom walls that employees would be killed, beat up, or get their cars burned if they did not support the union. Further, em- ployees testified that they were afraid of the threats being carried out. In considering these objections and the cases cited by the Employer, I also have considered that the record contains no evidence that the Union or union agents en- gaged in any acts of violence against persons or proper- ty. Further, since I have not found Burr, Mohnen, Bur- dick, or Kartes agents of the Union, I fmd that no union agent was involved in any of the alleged objectionable conduct. Also, there is credited testimony that Union Agent Reardon repeatedly told employees at meetings, and outside of meetings, that the Union did not condone the violence. The threats were for the most part directed at specific individuals. Unlike the threats cited in the cases relied upon by the Employer, the threats in the instant case were not repeated after the initial utterance by the union supporter, nor repeated at or near the time of the elec- tion. The threats here were disseminated within the unit; as were comments that some rumors were untrue (as dis- seminated by Frank Kwiatkowski). Except for Nennig, the record does not reflect that any of the recipients of the threats acted in fear of the union supporter carrying out their threats, nor is there any evidence that any of the perpetrators were capable of carrying out any threat. Only Nennig, unsure of his employment status, checked with his supervisor who reassured him he had nothing to be concerned about; and was further given reassurance by the Employer's March 20 letter. Only Nennig and Sherwood reported comments relayed to them by Mohnen to the Employer, and there is no evidence in the record that the Employer took any action against Mohnen for such comments. Except for the incident between Mohnen and Frank Kwiatkowski which occurred about 2 weeks before the election and the April 9 vandalism to Martunaro's car, all the other objectionable conduct alleged by the Em- ployer occurred between February 25 and 2 weeks before the election. Thus, the effect of that conduct clearly was dissipated before the election and has a lesser effect on the election than if it had happened a few days prior to the election. Chicago Metallic, 273 NLRB 1677 (1985); The Methodist Home, 596 F.2d 1173, 1183 (4th Cir. 1979). Based on all the foregoing and the entire record, I conclude the instant election was not conducted in an at- mosphere of fear and reprisal.