Stannah Stairlifts, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1998

325 N.L.R.B. 572 (N.L.R.B. 1998)

572
325 NLRB No. 97
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Petitioner has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The judge stated that he did not resolve the issue of whether Leo
Locurto was an agent of the Petitioner. The judge assumed arguendo
that Locurto was not an agent, and applied a third-party standard.
We agree with the judge. We find that Locurto’s ‘‘misconduct was
so aggravated as to create a general atmosphere of fear and reprisal
rendering a free election impossible.’’ Westwood Horizons, 270
NLRB 802 (1984). We note that this test does not hinge on the sub-
jective reactions of the prospective voters in a particular election.
The ultimate standard to be applied is objective, not subjective.
3 In the absence of exceptions, we adopt pro forma the judge’s rec-
ommendation that Objection 2 be overruled.
1 Electra Food Machinery, 279 NLRB 279 (1986).
2 Westwood Horizons Hotel, 270 NLRB 802 (1984); Sonoco of
Puerto Rico, Inc., 210 NLRB 493 (1974); and Lovilia Coal Co., 275
NLRB 1358 (1985).
Stannah Stairlifts, Inc. and Local 4, International
Union of Elevator Constructors, AFL–CIO.
Case 1–RC–20418
April 8, 1998
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On December 8, 1997, Administrative Law Judge
Robert T. Wallace issued the attached decision. The
Petitioner filed exceptions and a supporting brief. The
Employer filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs, and has
decided to affirm the judge’s rulings, findings,1 and
conclusions2 and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the election be set aside and that this pro-
ceeding be remanded to the Regional Director for Re-
gion 1 to conduct a second election when she deems
that the circumstances permit a free choice.
Don Firenze, Esq., for the General Counsel.
John F. Adkins and Sandra E. Kahn, Esqs. (Bingham Dana
LLP), of Boston, Massachusetts, for the Respondent.
Paul Kelly, Esq. (Segal, Roitman & Coleman), of Boston,
Massachusetts, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. This
case, together with another entitled Case 1–CA–33867, was
the subject of a decision issued by me on June 13, 1997, in
which I recommended dismissal of the complaint in the CA
case. That determination was upheld by the Board in a Deci-
sion and Order issued on October 31, 1997 (324 NLRB No.
141). In the same document, however, the Board severed the
instant RC case and remanded it for determination of Re-
spondent’s election objections.
Those objections are twofold: (1) That employee Leo
Locurto’s conduct, particularly on the morning of February
23, 1996, created a general atmosphere of fear and reprisal
that rendered a free election impossible and (2) that the
Union sought to buy the vote of another employee, Joseph
Panzera.
As found in the affirmed initial decision, Locurto engaged
in a loud verbal altercation with another employee (Tony
Cardarelli) at Respondent’s warehouse/office on February 23.
During the course of that altercation, Locurto screamed at
Cardarelli:
I’m going to get a van full of niggers to come down
and kick the shit out of all you Englishmen. I’ll hunt
you down. They will find you dead somewhere. That’s
the way the Sicilians do it.
I find merit in Objection 1.
Respondent Company is a wholly owned subsidiary of a
company based in England, Stannah Stairlifts, Ltd. A number
of executives in the subsidiary are residents of England.
The total complement of hourly workers employed by Re-
spondent at pertinent times is four. Of those, three (including
Locurto) manifested their prounion leanings by signing au-
thorization cards and openly talking up the Union while at
work. The fourth hourly employee is Cardarelli, an individ-
ual known by Locurto to have sided with the Company in
its opposition to unionization.
Prior to the altercation, Cardarelli had been shunned and
made the butt of jibes by the other three and had ample rea-
son to believe those actions, as well as a number of
harassing incidents (‘‘hang up’’ calls, missing personal tools,
and vandalism toward signs he had made and placed), were
due to his procompany stance.
With that background, it is apparent that Locurto’s ref-
erence to ‘‘Englishmen’’ was a code word meaning those
employees who sided with the Company in resisting union-
ization. Accordingly, Locurto was threatening to ‘‘kick the
shit out of and kill’’ Cardarelli and any other employee who
opposed unionization.
That threat was made within earshot of the entire four-man
unit and shortly before the representation election. It was
never repudiated by the organizing union. The Union won
the election by a vote of 2 to 1, Locurto’s vote having been
excluded in the CA case.
There is no need to speculate on whether the two who
voted for the Union were in fact intimidated. The language
used by Locurto must be tested under an objective standard.1
His threats to ‘‘kick the shit out of’’ and ‘‘kill’’ any ‘‘Eng-
lishmen’’ who opposed unionization, made in front of the en-
tire bargaining unit, were so serious as to warrant invalida-
tion of the election;2 and the likelihood of intimidation is
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573STANNAH STAIRLIFTS, INC.
3 Buedel Food Products Co., 300 NLRB 638 (1990); and Smithers
Tire, 308 NLRB 72 (1992).
4 NLRB v. Urban Telephone Corp., 499 F.2d 239, 244 (7th Cir.
1974); Hickman Harbor Service v. NLRB, 739 F.2d 214 (6th Cir.
1984); and Bristol Textile Co., 277 NLRB 1637 (1986).
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
magnified by the fact that the unit involved was small and
that the Union prevailed by one vote.3
I need not find that Locurto was a formal agent of the
Union in circumstances where, as here, he was an open sup-
porter of the Union and it knew of his threats, and had ample
opportunity to repudiate them but failed to do so.4
In view of the above, I shall Order that the election be,
and it is, set aside; and the matter is remanded to the Re-
gional Director for Region 1 to conduct a second election
when she deems the circumstances permit a free choice;5 and
that Objection 2 is dismissed because it is not supported by
substantial evidence.
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