Q. B. Rebuilders, Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1993

312 N.L.R.B. 1141 (N.L.R.B. 1993)

1141
312 NLRB No. 181
Q. B. REBUILDERS, INC.
1 All dates are in 1992. The election was conducted pursuant to
a Stipulated Election Agreement. The tally of ballots shows 40 bal-
lots cast for and 22 cast ballots against the Petitioner, with 5 chal-
lenged ballots, an insufficient number to affect the election.
2 The Employer does not except to the hearing officer’s finding,
supported by the record, that Cortes was not an agent of the Union
at material times.
3 The hearing officer appropriately described testimony such as
that cited above by employee Aguilar as being hearsay as to what
had been said by Cortes, but relied on such testimony by Aguilar
and other witnesses to establish dissemination among employees of
Cortes’ statements relating to the INS.
4 Also at this meeting, an employee questioned Medrano concern-
ing a rumor that the Union had a practice of seeking to replace un-
documented employees with documented workers. Union Agent
Medrano responded that he had participated in projects to help im-
migrants and that the Union’s policy was not to discriminate on the
basis of race, religion, or legal status.
5 The evidence also indicates that Gonzalez had told an employee
2 weeks before the election that the INS would come for the em-
ployee if the Union didn’t win.
6 The employee who was escorted away by the INS agents ulti-
mately returned to work, but the record does not reflect when he did
so.
Q. B. Rebuilders, Inc. and Machinists Automotive
Trade District Lodge No. 190 of Northern Cali-
fornia, Machinists and Mechanics Lodge No.
2182, Petitioner. Case 32–RC–3572
October 29, 1993
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has considered
an objection to an election held July 31, 1992, and the
hearing officer’s report recommending disposition of
it.1
The Board has reviewed the record in light of the
exceptions and brief, and has decided to affirm the
hearing officer’s findings and recommendations only to
the extent consistent with this decision.
The sole issue in this case is whether the laboratory
conditions required for a free and fair election were
destroyed when, on the day before the election, the Im-
migration and Naturalization Service (INS) detained an
employee at the Employer’s facility in the presence of
20 onlooking employees and took the employee away,
following widely disseminated third-party threats to
call the INS with respect to any employee who failed
to vote for the Union. Contrary to the hearing officer,
we find that the events leading up to the election cre-
ated an atmosphere of fear and reprisal such that the
laboratory conditions could not have been maintained
under the circumstances.
The Employer remanufactures brakes and calipers.
At the time of the election, there were approximately
70 employees in the unit, 90 percent of whom were
not United States citizens. Two weeks before the elec-
tion, employee Jose Cortes, who was a designated
member of the Union’s in-plant organizing committee,2
was overheard by employee Roberto Lopez telling a
group of six or seven coworkers and Union Organizer
Ernesto Medrano that he would call the INS to report
any employee who voted against the Union. According
to Lopez, Cortes and the rest of the group laughed as
if Cortes were joking, and Lopez himself perceived the
remark to be a joke, too.
During the course of the next 2 weeks Cortes re-
peated the aforementioned remark in the lunchroom,
and it was widely disseminated among employees in
the bargaining unit. The reaction of employees varied,
with some taking the remark as a joke and others be-
coming upset by it. For example, Lopez became irri-
tated and angry about the remark as it was repeated
among unit employees and concluded that it had not
been a joke. He informed Supervisor Joe Chavez about
it. Lopez also confronted Cortes about the remark a
week and a half prior to the election, and Cortes told
him that the remark was a joke. Employee Rogelio
Avina, who overheard Cortes repeat the remark in the
lunchroom, informed Supervisor Noe Gonzalez about
it, and employee Ninfa Aguilar also informed Gon-
zalez about ‘‘rumors’’ that the INS would be called if
the Union lost the election.3
On July 25, the Union conducted a meeting which
12 to 25 employees attended. Lopez, Aguilar, and an-
other employee raised the issue of Cortes’ remarks re-
garding problems with the INS if employees did not
vote in favor of the Union. At that time Cortes ac-
knowledged making the remarks but reiterated that it
had been a joke.4 On July 28, 3 days before the elec-
tion, the Employer conducted meetings to discuss ‘‘the
Union situation.’’ At one meeting, which 15 to 30 em-
ployees attended, General Manager Johnson told em-
ployees that the Employer had heard rumors of
‘‘threats’’ and said such rumors would not be tolerated
and that anyone making threats from that day forward
would be disciplined. Employee Napoleon Gonzalez
said that the threats were ‘‘just a bad joke.’’5 The
threats were also raised at another meeting that day,
and employee Hermilio Lopez also said they were a
joke.
On July 30, the day before the election, as employ-
ees arrived for work between 5:30 and 6 a.m., INS
agents stopped (Roberto) Lopez’ vehicle in the parking
lot and asked him and his passengers for documenta-
tion. One passenger, an employee who did not have his
documents with him, was taken away by the agents.6
The undisputed evidence indicates the incident oc-
curred in the presence of 20 employees.
The hearing officer properly set forth the standard to
be applied in determining whether third-party conduct
warrants setting aside an election. Thus, the objecting
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Member Raudabaugh notes that, as set forth herein, the state-
ments, as recounted by some, were that the INS would be called if
the Union lost the election. As recounted by others, the statements
were that the INS would be called as to any employees who voted
against the Union. As to the latter statement, in his view employees
who are familiar with NLRB secret ballot processes would know
that the Union could not ascertain how individual employees voted.
However, in view of the fact that most of the employees involved
herein are noncitizens, he is concerned that many of them may not
be familiar with NLRB processes, and they would therefore fear that
the Union could ascertain how individual employees voted.
8 It is immaterial that Cortes was not shown to have had any in-
volvement in the INS visit to the Employer’s premises, or that his
earlier statements did not specifically threaten that he or the Union
would initiate any INS activity. Regardless of whether the INS visit
may have been initiated by another individual or may have been
merely coincidental, it was Cortes who forecast the prospect of INS
intervention in relation to the union organizing effort. The presence
of the INS at the Employer’s premises on the day before the elec-
tion, regardless of the reason, revived and reinforced the threats
which Cortes was responsible for generating.
9 Blue Island Newspaper Printing, 273 NLRB 1709 (1985).
party must establish that the third-party conduct during
the election campaign was so aggravated as to create
a general atmosphere of fear and reprisal rendering a
free election impossible. Westwood Horizons Hotel,
270 NLRB 802 (1984). Further, in determining the se-
riousness of a third-party threat, the Board evaluates
not only the nature of the threat itself, but also whether
the threat encompassed the entire bargaining unit;
whether reports of the threat were disseminated widely
within the unit; whether the person making the threat
was capable of carrying it out, and whether it is likely
that the employees acted in fear of [that person’s] ca-
pability of carrying out the threat; and whether the
threat was ‘‘rejuvenated’’ at or near the time of the
election. Id. at 803.
Applying this standard, we find that Cortes’ conduct
in the 2 weeks prior to the election, in combination
with the events of July 30, created an atmosphere of
fear and reprisal that precluded the conduct of a free
and fair election. To begin with, Cortes’ remark, even
if uttered in jest, constitutes a serious threat of harm
economically and emotionally to the overwhelming
majority of the bargaining unit, for it invokes the sanc-
tions of detention and loss of work, and possible de-
portation.7 Here, there is evidence that the threat to
call the INS on employees who did not vote in favor
of the Union was admittedly repeated by Cortes to var-
ious unit employees and was disseminated to at least
one-third of the bargaining unit. There is further evi-
dence that whatever humor accompanied the initial re-
mark was diluted in the course of its widespread dis-
semination. Moreover, any potential that the threat
may have been mitigated during the week prior to the
election when employees were told in various forums
that Cortes’ remark was a joke, was completely ne-
gated and the threat itself and the severity of its con-
sequences were immediately brought to bear the day
before the election when approximately one-third of
the bargaining unit witnessed a coworker’s actual de-
tention and removal by the INS from the Employer’s
facility.8 In this connection, we find this case readily
distinguishable from Mike Yurosek & Sons, 225 NLRB
148 (1976), enfd. 597 F.2d 661 (9th Cir. 1979), on
which the hearing officer relied, and which likewise
involved third-party threats by a member of the in-
plant organizing committee to call the INS if the
Union lost, and mitigating disavowals by other orga-
nizing committee members. There, INS authorities had
been to the plant several months prior to the conduct
in issue. Thus, there was no rejuvenation of the threat
once it was mitigated as there was in the instant mat-
ter. In our view it defies all logic and imagination to
think that Cortes’ recent remarks did not again come
to the fore and permeate the voting atmosphere with
fear of reprisals once the INS detained an employee in
front of several witnesses on the day before employees
voted. Whatever jocularity was intended by these ear-
lier references to calling in the INS was completely
obscured by the patent seriousness of the INS’ actual
detention and removal of the employee.
On the basis of the foregoing, we shall set aside the
election and remand this proceeding to the Regional
Director for the conduct of a second election. In reach-
ing our decision to set aside the election in the instant
matter, we note that it is precisely because third parties
generally do not have the power to effectuate threats
that affect a significant segment of the bargaining unit
that the Board analyzes their conduct in terms of a pre-
vailing atmosphere of fear in determining whether the
conduct is objectionable. If it were not for such a test,
the Board would be put in the posture of setting aside
a great number of elections simply because a partisan
employee makes overbearing or exuberant remarks to
coworkers.9 Accordingly, we do not necessarily sug-
gest by this decision that threats by a third party to call
the INS or the appearance of INS agents at the situs
of a Board election will separately result in an election
being set aside. However, where such threats are proxi-
mately accompanied by an actual INS operation, and
the workforce is overwhelmingly vulnerable to such
events, we will not hesitate to find third-party mis-
conduct if these events immediately precede the elec-
tion, regardless of any further causal connection.
ORDER
It is ordered that this proceeding is remanded to the
Regional Director for Region 32 for action consistent
with this Order.
[Direction of Second Election omitted from publica-
tion.]