Foremost Dairies of the South

National Labor Relations Board - Board Decisions

Jul 22, 1968

172 N.L.R.B. 1242 (N.L.R.B. 1968)

1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Home Town Foods, Inc., d/b/a Foremost Dairies of
the South and Retail , Wholesale and Department
Store Union , AFL-CIO. Case 1 O-CA-6444
July 22, 1968
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND ZAGORIA
On July 1, 1966, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding, in which it affirmed, without
comment, the Trial Examiner 's Decision, adopted
his findings that the Respondent had violated Sec-
tion 8(a)(5) by refusing to recognize the Union
after it was certified by the Board, and ordered the
Respondent to take specific action to remedy such
unfair labor practices. Subsequently, the Respon-
dent filed with the United States Court of Appeals
for the Fifth Circuit its petition to review and set
aside the Board's Order, and the General Counsel
filed an answer and cross-application for enforce-
ment of the Order. Thereafter, on June 26, 1967,
the court handed down its Decision2 denying en-
forcement and remanding the case to the Board
"for a full hearing as to the validity of the election
and certification." On August 25, 1967, the Board
issued an Order reopening the record and directing
a further hearing before a Trial Examiner, con-
sistent with the court's remand, to take evidence on
the issues raised by the Respondent's objections to
the election and to determine whether or not the
conduct complained of affected the laboratory con-
ditions necessary for a free election.
On February 27, 1968, Trial Examiner Harry R.
Hinkes issued his Supplemental Decision on Objec-
tions to Election, attached hereto, in which he
recommended that the Employer's objections to the
election of July 29, 1965, be overruled and the
Order of the Board be affirmed. Thereafter, the
Respondent filed exceptions to the Supplemental
Decision, together with a supporting brief.3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
160 NLRB S
t Home Town Foods, Inc v N L R B, 379 F 2d 241
' The Respondent 's request for oral argument is hereby denied as, in our
opinion, the record and brief adequately present the issues and positions of
the parties
' It may be noted that the grounds relied on in the argument before the
court vary in some respects from those asserted herein and not all the
claims made to the court have been established However , since the court
remanded this proceeding for a full hearing as to the validity of the elec-
tion, we have considered the case de novo, without reference to the details
of the contentions before the court
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Supplemental Decision on Objec-
tions to Election, the Respondent's exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified below.
The Respondent asserts a number of factors
which it claims require that the election be set aside
when considered in combination.4 However, in
evaluating, pursuant to the court's holding,'
whether the totality of the circumstances destroyed
the requisite laboratory conditions, it is necessary
first to determine what relevant facts the Respon-
dent has established. As summarized by the
Respondent in its brief, the factors upon which it
relies consist of nine items, which are discussed
seriatim below:
1. Original sponsorship of the union by a su-
pervisor, Murray, his coldroom night-shift
leadman, Cooper, and various other coldroom
employees.
This factor apparently relates solely to Murray's
sponsorship of the Union. There is no claim that
Cooper, the night shift leadman, or any of the other
coldroom personnel were supervisory. However,
the only conduct by Murray which is discussed or
relied on occurred about 2 months before the
representation petition was filed 6 and therefore did
not occur within the critical period.' Furthermore,
because Murray is not alleged to have engaged in
any other relevant conduct, either before or after
he was laid off by the Respondent, aside from ap-
pearing at the polling place and seeking to cast a
challenged ballot, we find that any participation by
Murray in the initial organizational stages is irrele-
vant and not entitled to weight in determining the
circumstances surrounding the election herein.'
2. Repeated threats by coldroom employees
and others against several employees who were
antiunion, all made in the presence of other
employees and knowledge of which was
widespread in the plant.
The following testimony set forth in its brief by
the Respondent is uncontradicted, and is relevant
to the extent found below:
' Although the tests set forth by the court in some respects vary from
those customarily applied by the Board in determining whether the labora-
tory atmosphere surrounding the election was disrupted , we view the
court 's decision as the law of this case and reach our conclusions pursuant
thereto
' Murray's conduct in January and February is recited , while the petition
was filed April 8 , 1965, and the election was held July 29
Ideal Electric and Manufacturing Company, 134 NLRB 1275
" Cf Hammond & Irving , Inc , 154 NLRB 1071
172 NLRB No. 126
FOREMOST DAIRIES OF THE SOUTH 1243
(a) Wilbur Robinson, a truckdriver, was
threatened 3 days before the election by James
Owens, a union supporter, that "he would shoot
Robinson if Robinson drove a truck during a strike
and would come to Robinson's house to get him if
he had to do so."9 This threat was made in the
presence of another unit employee, Edmonson.
However, inasmuch as the threat was unrelated to
the way in which Robinson voted in the election,
and in any event could hardly be said to be likely to
compel the hearer to vote for the Union,10 it is not
a factor which might have contributed to an at-
mosphere which would prevent a free election."
(b) Robert Stegall testified that he was
threatened on three different occasions during the
critical period.12 Each of these was connected with
a letter which Stegall prepared, and to which he had
secured signatures of approximately 15 other em-
ployees, requesting that the Union return the cards
they had previously signed and turned in.
The first incident occurred in the plant when cold-
room employees13 James Owens and Johnny Hilli-
er approached him and Owens asked what the
letter was all about and then "told me that if I
didn't watch out I was going to get the hell beat out
of me." Stegall testified that employee Ronnie
Mayfield was also present at the time.
The second incident occurred at a union-held
steak dinner and meeting which followed. In a
discussion after the dinner, Owens again mentioned
the letter and one of two coldroom employees,
whose name Stegall did not know, "made the same
remark that James Owens made in the plant: that if
I caused him to lose his job, that I was going to get
the hell beat out of me." Stegal's testimony refers
to the presence of Owens and the two unnamed
coldroom employees. After the meeting, when
everyone who had attended the dinner and meeting
was standing around outside the cafe, the two
unidentified coldroom employees came up on
either side of him "and they grabbed my arms and
one of them said `Let's go around behind the build-
ing and talk ."' However , the father of another em-
ployee called to Stegall and he walked away.
Although Stegall stated that other unit employees (as
well as persons on strike at another company) were
present , there is no indication that anyone was
aware of what was occurring.
Finally , sometime thereafter , when Stegall went
into the coldroom , a group of employees were talk-
ing. Ernest Cooper , who was in the group , walked
up to Stegall and said , " I want you to go to the
woods with me. We are having a little gathering in
the woods , and I think after you go to the woods
with me and come back you will change your at-
titude about the union ."" Stegall refused, and
nothing more was said . Again, although Stegall in-
dicated that a group of coldroom employees were
in the vicinity , there is no indication that they were
close enough to have heard what was said or that
they knew that a threat was being made.
We agree with the Respondent that each of these
statements amounted to a threat . However , we note
that testimony concerning the statement of Owens
on the first occasion is somewhat confused by the
evidence that during the meeting after the steak
dinner an unidentified coldroom employee "made
the same remark that James Owens made " and that
this was that if Stegall caused him to lose his job he
was "going to get the hell beat out of" him. The
statement does not appear to be an effort to change
Stegall 's union views , as such , but rather is related
to some possible effect of those views on the other
employee 's job tenure . In our view , the statement is
not in any way directed to compelling , or even in-
ducing , Stegall to vote for the Union. But aside
from this Owens ' statement was made in the
presence of two other employees, Hillier and
Mayfield. As for the second threat , the Respondent
notes the statement during the after -dinner discus-
sion among Owens , Stegall , and the two unnamed
men, but it apparently relies only on the act follow-
ing the meeting when the two men "grabbed"
Stegall . As mentioned above , although others were
' It is to be noted , however, that on cross-examination Robinson testified
that Owens "just told me he would shoot me" but " he didn't say why " Nor,
on redirect examination did Robinson again relate the threat to any union
discussion It is thus far from clear that the threat was made as claimed
10 A threat to take dire action to compel adherence to union policies if
the Union is selected by a majority of the employees might well have the ef-
fect of inducing the hearer to vote against the Union to avoid the possibili-
ty
11 The Trial Examiner discredited this testimony because the Respon-
dent, after Robinson reported the incident , took no action to terminate
Owens, who remained in the Respondent 's employ for at least a year after
the election , or discipline him, and failed to take action to investigate the
complaint The Respondent , in its brief to the Board, attempts to explain its
failure to act by stating that it was seeking to avoid any conduct which
might ultimately require that the election be set aside or result in a
proceeding under Section 8(a)(3) of the Act , because of possible problems
under N L R B v Burnup and Sims, Inc , 379 U S 21 In view of our deci-
sion herein on an entirely different basis, we deem it irrelevant whether the
Respondent failed to take any action or the reason why it desisted from
pursuing the matter Accordingly, we deny the Respondent's motion, in fn
I of its brief, to reopen the record for submission of evidence concerning
this matter However, we note that we are unable to see how any dispute
could arise because of a warning to an employee that such a report had
been made and investigated and that (if the threat had been uttered) it was
not to be repeated
ix Contrary to the Trial Examiner's statement, the time of these various
incidents is established in the record, through questions asked by the Trial
Examiner, as approximately 4 to 6 weeks before the election
1' As set forth in the Trial Examiner's Decision, the organizational activi-
ty began among the coldroom employees
11 While the statement on this occasion is somewhat ambiguous, we as-
sume for purposes of this Decision that in fact it constituted a threat of
harm
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the vicinity, there is no indication they were
aware of what was happening. And the same is true
of the Cooper statement . Accordingly, the
testimony of Stegall resolves itself to three in-
cidents, only the first of which was overheard and
that was in the presence of two employees in a unit
of approximately 106 employees. These threats and
the circumstances surrounding them must be con-
sidered in connection with all the circumstances at-
tendant on the conduct of this election in order to
determine their possible effect on the election. Ac-
cordingly , we defer our finding thereon until all fac-
tors asserted by the Respondent have been con-
sidered in detail.
3. Widespread rumors that those who did not
vote for the union would lose their jobs.
It appears that there were rumors throughout the
plant concerning loss of jobs. Thus, the Respondent
points to the testimony of Mrs. W. B. Mizzell, a
processor employee, who testified that employee
Margie Thomas "told me that if the union went
through that we would lose our jobs, or something
to that effect." While Mrs. Mizzell's testimony is
not as summarized by the Respondent, it also cites
the testimony of employee Beatrice Hicks, which
accords with the Respondent's description of ru-
mors of threat of loss of job for failing to vote for
the Union.
The Court of Appeals for the Fifth Circuit, in its
decision remanding this case, commented on this
aspect of the alleged 15 conduct which was claimed
to interfere with the election , as follows:
One of the important issues is the effect of the
election and pre-election practices of union
supporters on the minds of the voters. The
Courts have usually applied an objective test to
determine whether interference with an elec-
tion is sufficient to set it aside .... Subjective
evidence of fear and coercion, however, may
carry the day as well ....
We consider this view as the law of this case. Ac-
cordingly, accepting the existence of such rumors,
we shall evaluate them hereinafter on this basis
together with the other relevant factors.
4. Apparently widespread knowledge of
damage to trucks driven by antiunion drivers.
The sole evidence to support this allegation is the
testimony of employee Robinson that he had trou-
ble with his truck during the preelection period and
the testimony of employee Beatrice Hicks that
"there was rumors about that somebody damaged
trucks, or something ." In response to the question
"which trucks" she said "some of the transport
trucks, I guess ." There was no evidence from which
it could be inferred that this trouble with the truck
was attributable to any individual, let alone a union
supporter. The Respondent argues that while this is
not as serious as other conduct, the "employees
could easily and reasonably conclude that if they
failed to support the union, their personal vehicles
or other property would be subject to similar van-
dalism." However, we see no ground for concluding
that any employees drew such a conclusion nor do
we perceive any reasonable basis on which they
might have done so.
5. An election conducted in a "goldfish bowl"
where each voter had to pass a gang of pro-
union laid-off employees who were the very
ones most active in threatening antiunion
voters and who stood only 3 feet from the bal-
lot box accompanied by their prounion super-
visor, a situation created by the Board agent
conducting the election in spite of Respon-
dent's attempts to avoid this situation.
The facts are that this election was conducted in
one of the locations offered by the Respondent
prior to the election. It was a room with a glass
front open to the street, but about 14 feet away
from the street. The voters entered the room from
the rear, not from the street side. It appears that
several persons who were on strike at another plant
stood on the street and that there was a car parked
at the side of the street with a sign saying "Vote
Yes" in one window
In the room was a counter, located approximate-
ly 3 feet from the voting booth, behind which per-
sons who were to vote by challenged ballots were
asked to wait until the Board agent was free to
record the necessary information for this purpose.
These persons consisted of laid-off employees, in-
cluding Murray, the former supervisor of the cold-
room. Murray was later told he was ineligible, and
said, "Well, I tried," or words to that effect. There
is no evidence that conversations occurred with any
of the voters other than brief greetings and one in-
cident in which one of the laid-off employees
nodded and made a sign of an "X" to a voter, who
testified that she thought this meant he wanted her
to vote for the Union because she had heard that he
favored the Union. The Respondent asserts that the
Board agent "invited" the laid-off employees and
Murray into the polling place. It appears quite clear
that the Union's business agent spoke to the Board
agent conducting the election about the laid-off
persons casting ballots and they were permitted to
" 379 F 2d 241, 244
FOREMOST DAIRIES OF THE SOUTH 1245
enter the polling place for that purpose, as is
customary. 16
We find no basis in any of the above circum-
stances to require a finding that there was anything
unusual in the conduct of this election. The
presence of challenged voters waiting to cast a bal-
lot cannot be equated to the unjustified presence of
uninterested persons , even if one of them was a
former supervisor . Nor can the presence of a
former supervisor who is no longer on the com-
pany's payroll be equated with the presence of a
management representative . It would seem, on the
contrary , that the fact that these were discharged
persons even though they favored the Union would
remove any fears that other employees assertedly
had that only a prounion vote could protect their
jobs. The Respondent contends that these chal-
lenged men were the very persons who had engaged
in threats , but there is no evidence to this effect or
any indication that the voters who testified, other
than Stegall , were aware of it , even if it were true..
Rather , a number of employees testified variously
that they felt uneasy because of the presence of
laid-off employees , or because the voting was "not
as private " as expected , or because it had been ex-
pected that "only authorized " personnel would be
present. And, although no voter was able to see
how any other person voted , some were afraid that
perhaps someone might be able to see into the
booth . However , all of the employees, except
Stegall , testified that despite these uneasy feelings
they cast their ballots as they wished. Only Stegall
testified that the presence of three people who had
threatened him caused him to vote differently than
he would have otherwise, and his ballot was insuffi-
cient to affect the results of the election.
6. Surveillance of the polls by Daniel, the
union business agent and organizer , and strik-
ing employees of another company who had
been active in the election campaign and who
had a truck with a " Vote Yes" sticker parked
immediately outside the open glass front of the
polling area.
The evidence adduced by the Respondent in this
connection was that Daniel drove past the polling
place on two occasions while the election was in
progress . Collier , Respondent 's assistant manager,
testified to this effect , stating that he was at the side
of the plant at the time to see that no one came
around front to vote or observe the election
through the glass front. The Respondent 's brief
points out that because Collier was behind the
corner of the building he was unable to see any
voter acknowledge Daniel 's presence . To the extent
the Respondent may be suggesting that because
Collier was unable to see that a voter
acknowledged Daniel 's presence there is a pre-
sumption that such acknowledgment occurred, we
cannot agree . Some affirmative evidence would be
required before an inference could be drawn that
any questionable activity took place . The mere fact
that the Union 's business agent may have driven
past the election site cannot , either alone or in con-
junction with the other factors involved herein, add
to any atmosphere of confusion or fear which might
possibly interfere with an election . Nor do we find
that the fact that strikers from a different company
were on the street approximately 14 feet away from
the building could have added to any possible im-
pact on this election , absent evidence that
something more occurred ." It is not asserted that
these persons had engaged in any misconduct at
any time , either before or during the election, and
their only activity was their presence in the area
with a "Vote Yes" sign in the window of an au-
tomobile . There is no evidence that the voters were
even aware of their presence.
7. Misconduct of the Board agent conducting
the election in allowing the union business
agent to enter the polling area while voting was
in progress , in stationing Murray at the polls
even after specific identification of Murray and
knowledge of Murray 's status , in leaving the
ballot box unattended while voting was in
progress , in allowing voters possessing un-
marked ballots to congregate in a group prior
to voting , during which time electioneering by
prounion employees occurred , and in failing to
move the election site in view of circumstances
requiring such action.
8. Electioneering and conversations with
voters at the polling place by union supporters
and agents.
It appears that the Respondent is referring in
both of these allegations to the fact that the Union's
business agent entered the polling area to speak to
the Board agent concerning the casting of ballots
by the laid -off employees. As a result of this, the
Board agent left the polls for a short period. How-
ever , the business agent entered for a very brief
period on legitimate business , and there is no indi-
cation or contention that while there he spoke to
'fi The Respondent acknowledges that the handling of laid-off employees
was in accord with the Board's procedures in such circumstances
Although it asserts that it is not attacking the validity of those procedures,
it has requested that the Board reexamine its method of allowing laid-off
employees to enter polling places to cast ballots under the challenge
procedures We find no merit in the contention that any different method
of processing challenged voters is essential, or even desirable Challenged
voters are entitled to the same treatment as are clearly eligible voters
° Sewanee Coal Operators Asxuiation , Inc , 146 NLRB 1145
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anyone but the Board agent.l" As to the Board
agent's absence from the polling place, this, too,
was very brief and it is not asserted that the ballot
box was not attended by observers of the parties.19
The assertion that there was electioneering while
voters were waiting to enter the booth is unsup-
ported by any evidence.20 Nor does the rule as an-
nounced in the Milchem case, supra, apply to mere
conversations among voters. Finally, the Respon-
dent's assertion that the circumstances required
moving the election site is a mere conclusion which
assumes the answer to the inquiry involved herein
and needs no further comment. In sum, we find no
factors asserted in this aspect of the Respondent's
contentions which provide additional detail to be
considered in evaluating the entire situation. The
Respondent's description of the conduct of the
election is lurid; the facts are not.
9. Resultant fear, tension, and serious doubts
as to the secrecy of their ballots on the part of
many employees, at least one of whom
changed his vote because of these circum-
stances, all of which cast grave doubts upon
the integrity of the election process and im-
pugned the Board's election standards.
Once again the Respondent has set forth as a fac-
tor a somewhat exaggerated statement of matters
which have already been alleged and discussed
above. Thus, the "fear, tension, and serious doubts
as to the secrecy of their ballots" resulted not from
any demonstrated misconduct on the part of any-
one present, but from the fact that the conditions
were different in some respects from what the em-
ployees envisioned. For example, one employee
stated on the record that he thought only
"authorized" personnel would be present, but his
conception of who was authorized to attend was
not explored and in fact no one was in the polls
who was not authorized to be there by the Board
agent in charge . Finally , there is no basis in this
record for the statement that "at least" one voter
changed his vote, since it is apparent that the
record shows only that one one changed and it con-
tains no basis for any inference that any other voter
may have changed his vote.
Summary
The above review of the Respondent's assertions
and the facts related thereto shows that the follow-
ing relevant conditions existed when the election
'" Cf Mdchem, Ins , 170 NLRB 362, concerning "prolonged conversa-
tions " between parties , agents, and prospective voters Nor is M:h heir ap-
plicable to the brief conversation the business agent had with the
discharged employees outside the polls
" Anchor CouplingCo, 171 N LRB No 156
was conducted: The coldroom employees were
among the most vigorous union adherents and four
of them made threats to Robert Stegall on three oc-
casions some 6 weeks before the election; one of
these was shown to have been witnessed by two
other employees. There were rumors that em-
ployees who did not vote for the Union would lose
their jobs and apparently these were circulating
during a period of several weeks prior to the elec-
tion. The election was conducted in one of the lo-
cations suggested by the Respondent, which was a
storefront room with windows open to the street. A
number of strikers from another company were
present on the walk in front of that location, about
14 feet from the building, and they had a "Vote
Yes" sign in a window of an automobile. Inside the
polling place a number of laid-off employees of the
coldroom and their former supervisor (also laid off)
waited behind a counter to cast challenged ballots.
According to the testimony of Mrs. Wesson, there
were five or six men standing behind the counter,
but in no event could there have been more than
nine at any time inasmuch as only nine challenged
ballots were cast during the election. These men
talked among themselves and greeted some of the
voters, and one of them nodded and made the sign
of an "X" to a voter. Stegall indicated that the men
who had threatened him were among those behind
the counter and he changed his vote because of the
presence of those men. Several other witnesses
testified that the presence of the men made them
uneasy and they feared that some might see how
they voted. However, all the witnesses, including
Stegall, conceded that they were unable to see how
anyone else marked his ballot , and all the witnesses
except Stegall testified that they cast their vote ac-
cording to their own wishes . The Union 's business
agent spoke to the laid-off employees outside the
building , entered the polling place and spoke to the
Board agent in charge, and then left, but he drove
past the location twice during the time of the elec-
tion. The Board agent left the polling place briefly
and told the laid-off persons to come in to the polls
and wait to cast challenged ballots.
We are unable to conclude that these circum-
stances justify the conclusion that the requisite
laboratory conditions for the conduct of a free
election were not present. Applying the test set
forth by the court, as summarized above, there is
no evidence that any of the above factors resulted
in subjective reactions which interfered with the
20 If the Respondent relies on the fact that one challenged voter nodded
his head and made the sign of an "X " to one of the voters , this incident has
been discussed above Similarly, Murray's presence in the election area has
been set forth heremabove
FOREMOST DAIRIES OF THE SOUTH
vote of any employee other than Stegall, and his
ballot could not affect the result.
The court expressed the view that if the entire at-
mosphere in which the election was held was
tainted, it would be immaterial that the conduct
creating that atmosphere was not directly attributa-
ble to the Union. However, it seems apparent to us
that the court's opinion must be interpreted as
dispensing with a showing of responsibility by one
of the parties only where the conduct involved is of
so serious a nature that it could only result in
widespread confusion and fear of reprisal which
would render impossible a rational, uncoerced
choice by employees.2I Here, the incidents which
exceeded permissible bounds were merely the three
involving Stegall and the coldroom employees, of
which all were very limited in nature and only one
was known to two other employees. We do not
think that this amount of misconduct was what the
court considered sufficient for the application of
the criterion it stated. Accordingly, we adhere, for
the reasons stated, to our prior holding.
In view of the above, we find that there is no
basis for setting aside the election in this case. Ac-
cordingly, we shall adopt the Trial Examiner's
recommendation that the Respondent's objections
to the election be overruled, and we shall affirm
our certification of the Union and our Order of July
1, 1966, at 160 NLRB 8.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby overrules the objections to
the election ; affirms the certification of Retail,
Wholesale and Department Store Union,
AFL-CIO, as the representative of the employees
in the appropriate unit ; and orders that the Respon-
dent take the action set forth in the Order previ-
ously issued herein on July 1, 1966.
21 That this is so seems clear from the court's citation of Diamond State
Poultry Co , Inc , 107 NLRB 3, where on the morning of the election a
number of strangers circulated throughout the plant They threatened a
large number of prospective voters that "something would happen to
them" if there were not "a good election," told others to "vote right if you
know what is good for you," and in one instance threatened an employee if
he did not vote the "right way" while the person making the threat held a
slaughtering knife Similarly , in N L R B v Tampa Croa it Dntnbutorti, 272
F 2d 470 (C A 5), cited by the court in another connection, two eligible
voters out of a total of eight in the unit received anonymous telephone calls
dust before the election threatening harm to their respective children if they
did not vote for the Union These two votes were sufficient to have affected
the results of the election
SUPPLEMENTAL DECISION OF THE TRIAL
EXAMINER ON OBJECTIONS TO ELECTION
STATEMENT OF THE CASE
HARRY R. HINKES, Trial Examiner: Retail,
Wholesale and Department Store Union,
1247
AFL-CIO, hereinafter referred to as the Union,
filed a petition on April 8, 1965, seeking an elec-
tion in a unit of certain of Respondent' s employees.
An election was directed on July 1, 1965, and was
held July 29, 1965. The election resulted in 52
valid votes for the Union, 45 against it, and 9 chal-
lenged ballots. Of these nine challenged ballots,
seven challenges were subsequently sustained and
the remaining two were left unresolved on the
ground that they could not be determinative. Home
Town Foods, Inc., d/b/a Foremost Dairies of the
South, hereinafter referred to as the Employer or
Company, filed objections to the election which
were overruled in their entirety by the Regional
Director upon an ex parse investigation and the
Union was certified on October 15, 1965. The
Respondent thereafter refused to bargain with the
Union whereupon a complaint alleging such refusal
was issued. A hearing on that complaint was held
before me on March 29, 1966, and on May 23,
1966, I issued my Decision finding that the Respon-
dent had violated Section 8(a)(1) and (5) of the
Act by refusing to bargain with the Union. This
Decision was upheld by the Board on July 1, 1966,
160 NLRB 8. On appeal to the United States Court
of Appeals for the Fifth Circuit, that court, on June
26, 1967, issued its decision remanding the
proceeding to the Board for a full hearing as to the
validity of the election and certification, 379 F.2d
241.The Board on August 25, 1967, ordered the
record in this proceeding reopened for a hearing
before me for the purpose of receiving evidence to
resolve the issues raised by the Employer's objec-
tions to the election and to determine whether or
not the conduct complained of affected the labora-
tory conditions necessary for a free election. I was
further instructed to prepare a supplemental deci-
sion containing findings of fact based upon the
evidence received pursuant to the provisions of the
order. Pursuant to the order, therefore, further
hearings were held before me on December 6 and
7, 1967, in Sylacauga, Alabama, at which all parties
were represented and were afforded full opportuni-
ty to participate , examine witnesses , and adduce
relevant evidence. Briefs have been filed by each of
the parties and have been given careful considera-
tion by me.'
After considering the evidence adduced at these
hearings and the briefs filed in support of the posi-
tions taken by the parties, I make the following:
FINDINGS OF FACT
1. THE EMPLOYER'S EVIDENCE
Nine witnesses testified on behalf of the Em-
ployer. From their testimony, the stipulations
reached, and the exhibits in evidence a description
of the voting area is possible. The election was held
in a snackbar on company premises. The snackbar
had an entrance from the street level on North Nor-
' By order dated February 20, 1968, specified corrections to the transcript
were made
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ton Avenue, as well as a rear entrance which led to
the plant itself. The street side of the snackbar was
glassed in from about 2-1/2 feet above the floor to
the ceiling. Inside the snackbar, about 6 feet from
the glassed wall, was a serving counter measuring
about 20 inches in depth. At the right end of this
counter it made a sharp elbow and the width of the
counter at the elbow was about 15 inches although
the elbow itself extended 46 inches from the front
of the counter. In back of the counter were various
vending machines . In front of the counter a chair
was placed near the elbow of the counter and the
ballot box was put upon the chair. The voting booth
itself, consisting of a 4 -sided cubicle measuring
about 3 feet on each side and curtained to about
midway from top to bottom, was put in the 6-foot
space between the counter and the glass wall so
that its nearest point was about 2-1/2 or 3 feet from
the front edge of the counter.
So that a clear picture of the Company's
evidence may be obtained and the cumulative ef-
fect of the conduct complained of be assessed, the
testimony of each of the witnesses testifying on be-
half of the Employer will be summarized in turn.
A. James Murray
James Murray, a former supervisor of the Com-
pany, testified that on January 19, 1966, he went to
Birmingham , Alabama, together with several other
employees of the Company. There one of the em-
ployees attempted to contact someone by
telephone. Shortly afterwards a union organiza-
tional meeting was held in Murray 's garage at-
tended by a number of the Company's employees.
Murray introduced Union Representative Daniel
but denied telling the employees present that he
was for the Union.
Murray further testified that he came to the elec-
tion in July 1965. When he arrived at the polling
area, he asked the "man in charge" if he could vote
and was told that he thought he could. He was in-
structed by the man in charge to stand in line be-
hind the counter together with several others. Two
of these employees were Matherson and Black who
were then working for the Company and three
others were laid-off employees as was Murray at
the time. Murray stood behind the counter for
some 15 to 20 minutes during which time 15 to 20
employees came from the plant to vote. He spoke
to some of them and some of them spoke to him
but probably not merely to him but to the whole
group standing with him behind the counter. Mur-
ray was then told he could not vote whereupon he
left the polling area.
B. Attorney Ford
William Ford, one of the attorneys appearing on
behalf of the Employer, testified that employee
Stegall told him he used the back stairs to come to
an interview prior to the election because he was
concerned about what might happen to him if
others thought he was going to speak to an NLRB
agent.
C. Mrs. Mizzell
Mrs. Mizzell testified that during "the period of
time before the election" employee Thomas told
her that "if the Union went through we would lose
our jobs or something to that effect." She added
that it was "just general plant talk" and was unable
to designate the exact time of the remark. Mrs.
Mizzell further testified that when she went to the
polling area she saw "the boys that had been laid
off" behind the counter, but she heard no conversa-
tion between the men behind the bar and the others
present. She stated that she felt "uncomfortable
and uneasy" because she heard "so many rumors
that they were union supporters and what would
happen about losing jobs." She also testified that
she was "uneasy and uncomfortable" inside the
voting booth because she thought it would be
"more private." Nevertheless, she admitted that
nobody saw her mark the ballot and, as far as she
knew, it was a secret ballot.
D. Mrs. Hicks
Mrs. Hicks testified that "in the period prior to
the election" she heard rumors from "everybody"
that if you did not vote union you would lose your
job. She also heard rumors about "somebody
damaged trucks or something." When she arrived
at the polling area, she saw Murray behind the
counter and five or six others. They said nothing to
her as she filed through the line but employee For-
bus, who was behind the counter and who she had
heard was for the Union, made the sign of an X to
her. She admitted, however, that she did not know
whether he meant for her to vote for the Company
or for the Union.
Mrs. Hicks, like Mrs. Mizzell, said she felt "kind
of uneasy and uncomfortable because these men
were out there that they were not working at the
time and it made you feel kind of uncomfortable
and all." She did not know if anyone could see in-
side the booth and, in any event, voted the way she
wanted to.
E. Mrs. Wesson
Mrs. Wesson testified that in March, more than 4
months before the election, three men, two of
whom were employees of the Company, visited her
at her home and asked her to vote for the Union,
telling her of the benefits she would get. She also
testified that her fellow employees spoke of the
Union and "everybody just talked about" the non-
supporters of the Union not receiving benefits. On
election day she came to the voting area before
3:30. There she saw five or six men standing behind
the counter. She was "kind of afraid" as she
FOREMOST DAIRIES OF THE SOUTH
marked her ballot in the voting booth because she
felt "like I was standing out in the open ." Although
she could not see the person directly in front of her
as that person voted within the booth , she felt that
the men behind the counter could . She also
testified that on the rear window of a car parked on
the street in front of the snackbar was a card
smaller than 6 by 9 inches in dimension with the
words "vote yes ." Mrs. Wesson voted the way she
wanted.
F. Orbie Byrd
Employee Byrd testified that employee Hebson,
either before or after the election , told him that
"those fellows said they are going to get you." No
names were mentioned and Hebson said nothing to
indicate that it would be employees that would do
this or that it would be union supporters. Byrd also
testified that there were rumors through the plant
about doing harm but he could not recall any
names.
Byrd acted as a company observer at the election
and came to the voting area before the polls
opened . There he found Union Representative
Daniel , a Board agent , and another employee who
was the union observer. Daniel was asked to leave
at 3 o 'clock when the polls opened and he did leave
but voting had begun by the time Daniel 'walked
outside . There Daniel talked to some of the em-
ployees standing around including Murray and
other employees who had been laid off. Daniel then
told the Board agent that these were laid-off em-
ployees and the Board agent went out to talk with
them . The Board agent then returned to the
snackbar and brought with him the laid-off em-
ployees . He told those employees to stand behind
the counter and they did. They spoke to each other,
not loud, and a couple of times the Board agent
told them they would have to be quiet . Byrd also
saw some of them speak to the employees waiting
to vote . Byrd testified that he could not see how the
employees voted within the booth . The employees
looked smiling as they came in to vote but when
they came up to the table they quit smiling and they
"got tense ." He did not know what caused the
change of attitude . When Murray came up to vote,
Byrd challenged him and the Board agent told Mur-
ray he was not eligible to vote . Murray replied,
"well, I tried anyway" and left. The other men be-
hind the counter voted at intervals and some of
them stayed for almost all of the voting time which
began at 3 o'clock and ended at 4:30.
G. Winfred Collier
Assistant Manager Collier testified that he was
standing on Fifth Street which is the north end of
the company plant and saw Union Representative
Daniel drive north on Norton Avenue which is the
street which passes in front of the snackbar. He
noted that Daniel was looking back . This was
1249
shortly after 3 o'clock , and later , during the voting
period , he saw Daniel again driving north on Nor-
ton Avenue . Daniel was traveling about 15 to 20
miles an hour . Collier saw no one acknowledge
Daniel 's presence on either occasion . When Collier
received word that voting was closed at 4:30, he
went upstairs to the office and accompanied Attor-
ney Ford to observe the counting of the ballots.
Daniel was at the polling area when he arrived with
Mr. Ford.
H. Wilbur Robinson
Employee Robinson testified that employee
Owens , who had told Robinson that he was 100
percent for the Union , asked Robinson on July 26 if
he was going to pull the load if they got the Union.
Robinson replied that he would do what his "boss-
man" tells him to do . Owens then told Robinson,
"If you drive it I will shoot you. I will get you if I
have to come to your house ." Robinson walked off
and reported the incident to Plant Superintendents
Collier and Tanner . Owens remained in the employ
of the Company "every bit of a year" after the elec-
tion . Robinson also testified about mechanical dif-
ficulties with his truck relating that a mechanic
found some gummy stuff in the fuel pump. He had
had no such difficulty before or after the union
campaign.
I. Robert Stegall
Former employee Stegall testified that a week or
10 days before the meeting in Murray 's garage,
which took place in February 1965, Murray asked
Stegall how Stegall felt about the Union to which
Stegall replied that the Union was "sometimes good
and sometimes bad." Murray then told Stegall he
would get a chance to prove how he felt about the
Union before long and invited him to the meeting
at Murray 's garage . At that meeting Murray in-
troduced Union Representative Daniel and said
that he was 100 percent for the Union and would
like to see the Company go union but could not get
involved in it because he was a supervisor. He then
turned the meeting over to Daniel who asked that
Murray 's name not be mentioned in any way or that
he be implicated in the union activity. He dis-
tributed union authorization cards to some of those
present and said that he would send more to em-
ployee Martin . Stegall signed one of those cards
and gave it back to Daniel. The meeting then
closed , Daniel saying that he would let Martin
know when there was going to be another meeting
and Martin could let the employees know. Some
time later Stegall wrote a letter on behalf of himself
and some other employees asking for the return of
their union authorization cards.
Stegall further testified that prior to the election,
although he did not know how much prior, em-
ployee Owens told him that if he did not watch out
he was going to get the hell beat out of him. On
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another occasion, when the Union held a steak
supper for the card signers, Stegall attended. By
this time the other employees knew that Stegall had
written a letter asking for the return of his union
authorization card. Despite this knowledge, Stegall
admitted that he was not afraid to attend the steak
supper. There employee Owens raised the subject
of Stegall's letter and an unidentified employee told
Stegall that if he caused him to lose his job he was
going to get the hell beat out of him. Following the
meeting while Stegall was standing outside, two
unidentified employees surrounded him, grabbed
his arms , and said " let's go around behind the
building and talk." Just then the father of a former
employee came by and motioned for Stegall to
come over. Stegall left the two unidentified em-
ployees without hindrance. Stegall also told of
another incident prior to the election when em-
ployee Cooper asked him to go with him to the
woods saying that "after you go to the woods with
me and come back you will change your attitude
about the Union." Stegall refused to go with
Cooper.
Stegall voted in the election and noted the men
behind the counter when he came in. Among them
were the two men who had "grabbed" him after the
union steak supper . Stegall testified that he
changed his vote and voted for the Union because
of the presence of the people behind the counter.
He admitted, however, that he did not know
whether the men behind the counter could see how
he voted. Stegall could see how others voted within
the booth only to the extent that he could see them
move the pencil but could not tell how they voted
even when he was about 3 feet away from the
booth, the same distance that the people behind the
counter were. Nevertheless, Stegall testified that he
was scared , "just a feeling I had."
II. THE GENERAL COUNSEL'S EVIDENCE
Three witnesses testified on behalf of the General
Counsel.
Employee Forbus testified that he attended the
election and voted a challenged ballot having been
laid off prior to the election. While waiting to vote,
he stood behind the counter where he could not see
how the voters in the booth voted. He denied that
he carried on a conversation with any of the voters
although he nodded and grinned at a few.
Union Representative Daniel testified that he ar-
rived at the plant about a half hour before the elec-
tion, parked his car in a parking lot directly across
the street from the polling area, and entered the
snackbar. When the polls opened, he left the
polling area, got into his car, and drove north on
Norton Avenue going to a restaurant where he
remained until the polls were scheduled to close.
He then drove back to the plant, driving south on
Norton Avenue, parked his car, and reentered the
plant.
R. C. Polk, an official of a local labor council,
testified that he was present at the Company 's plant
on election day. He and a group of other nonvoters
left the polling area prior to the opening of the polls
and went to a cafe some distance from the plant,
and he stayed with Mr . Daniel until the polls were
scheduled to close. Polk further testified that some
of the nonvoters standing outside the snackbar
were employees of another company.
III. CONCLUDING FINDINGS
From the above testimony certain categories of
alleged objectionable conduct affecting the results
of the election appear.
A. Rumors
Witnesses Mizzell , Hicks , Wesson , and Byrd
spoke of rumors about nonsupporters of the Union
losing jobs or not receiving benefits. None of these
witnesses , however , indicated the time of these ru-
mors other than they occurred before the election;
nor was the identity of the originators of these ru-
mors established . I credit their testimony that there
were rumors such as they described from
unidentified persons at unidentified times.
B. Threats
I credit the testimony of witness Mizzell to the ef-
fect that employee Thomas told her that they would
lose jobs if the Union went through. I find, how-
ever, that this statement was made at some in-
definite time prior to the election.
I also credit the testimony of employee Byrd to
the effect that employee Hebson told him that
someone was going to get him . I find , however, that
no names were mentioned and that the statement
was made at some indefinite period of time,
possibly even after the election.
Although employee Robinson testified that em-
ployee Owens threatened to shoot him, I do not
credit his testimony. I note that although Robinson
reported the incident to the plant superintendents,
Owens nevertheless remained in the employ of the
Company at least a year after the election. I find it
incredible that company officials would fail to take
some disciplinary action or at least investigate the
complaint if indeed a complaint was made by
Robinson. Absence of any testimony, indicating
that an investigation was made or that any discipli-
nary action was taken against Owens for this threat,
leaves me to conclude that the threat was not ut-
tered.
Former employee Stegall also implicated em-
ployee Owens who allegedly threatened to beat him
up. The time of this alleged threat is not
established. Another employee, unidentified, al-
legedly made a similar threat to Stegall and the date
of this threat is similarly left to conjecture. Stegall
FOREMOST DAIRIES OF THE SOUTH
also testified about unidentified employees "grab-
bing" him and asking him to go around behind
the building to talk. Admittedly, however, they per-
mitted him to walk away without offering any im-
pediment. Similarly, when employee Cooper asked
Stegall to go to the woods for a meeting, Stegall
found no difficulty in refusing the offer. It was the
presence of these persons who had allegedly made
these remarks to Stegall which "frightened" him
into voting for the Union at the election. I find his
explanation for his change of vote, however, unper-
suasive. I do not find the behavior of the two
unidentified men or of Cooper to be threatening,
coercive, or intimidating. I note that when he at-
tended the Union's steak supper, he was admittedly
unafraid, although he was in the company of many
union supporters. I find it hard to understand why
the same individual, when near a smaller number of
union supporters at the election and in the presence
of the Employer's representative as well as a Board
agent and in the secrecy of the voting booth, should
have any fear and cannot credit his testimony to
that effect.
C. Surveillance
Counsel for the Company argues that Union
Representative Daniel engaged in surveillance of
the polls citing the testimony of Assistant Manager
Collier that Daniel drove north on Norton Avenue
twice while the polls were open. Daniel, however,
explained the situation convincingly when he
described how he had parked his car, how he had
driven to a restaurant after the polls opened, and
how he returned to the polls once the voting was
over. I credit Daniel's testimony and find his
behavior far short of any conceivable act of surveil-
lance particularly in the absence of any evidence
that any voter noted his presence on the street or
reacted to it.
Company counsel also urges a finding of surveil-
lance in the presence of a truck outside the polling
area with the sign "vote yes" on its rear window.
The small size of that sign, its distance from the
voting area , and the inability of anyone within the
voting area to see the sign make it impossible to
conclude that it had any apparent effect on the
voters or the voting, regardless of who was respon-
sible for placing the sign on the car and the car at
its parking space.
D. Lack of Privacy
Counsel for the Company argues that the elec-
tion was conducted in a "goldfish bowl" citing the
fact that the voters passed near a group of prounion
laid-off employees. There is no doubt , of course,
that the voters did pass a group of laid-off em-
ployees who were standing behind a counter as the
voters approached the voting booth . Only one of
the witnesses testifying on behalf of the Employer,
Byrd, heard any conversation between the voters
1251
and the laid-off employees or for that matter among
the laid-off employees, and even he testified that
this conversation was not loud. The nature of this
conversation is unknown, but, assuming that it took
place, could furnish no basis for concluding that it
deprived the voters of a secret ballot or intimidated
them in any way.
The testimony of some of the witnesses regarding
their feeling of discomfort or uneasiness as they re-
gistered their vote within the voting booth is hardly
attributable to the conditions surrounding the elec-
tion. There is nothing to indicate that their ballots
were other than totally secret. Some of the wit-
nesses admitted as much. The testimony of others
to the effect that they thought the voting could be
observed from without the voting booth is clearly
incredible. I doubt very much that even the
removal of the laid-off employees from the
snackbar would have changed the feelings of the
voters.
Analysis and Conclusions
It is well established that the burden of sub-
mitting evidence in support of objections to an
election rests upon the one filing such objections.
Mattison Machine Works, 120 NLRB 58, affd. 365
U.S. 123. It is also settled law that the date of filing
of the petition for an election should be the cutoff
time in considering alleged objectionable conduct
in contested cases. Ideal Electric and Manufacturing
Company, 134 NLRB 1275. Applying these tests to
the evidence submitted in this case, I conclude that
the Employer has not met his burden of proof with
respect to the alleged rumors and threats. Specifi-
cally, the rumors testified to by witnesses Mizzell,
Hicks, Wesson, and Byrd cannot be considered as
objectionable conduct affecting the election in-
asmuch as it has not been established that these ru-
mors were circulated on or after April 8, 1965,
when the petition was filed. The same principle
removes from consideration the testimony of Miz-
zell concerning the threat of a job loss conveyed to
her by employee Thomas and the alleged threat
conveyed to employee Byrd by employee Hebson
that someone was going to get him. Similarly the al-
leged threat by an unidentified employee to Stegall
about beating Stegall up is not shown to have oc-
curred after the petition for election was filed.
I do not consider Stegall's testimony about
unidentified employees "grabbing" him and asking
him to go around behind the building to talk as
constituting a threat inasmuch as he was not
prevented from walking away from these in-
dividuals. I regard the alleged request from em-
ployee Cooper for Stegall to go to the woods for a
meeting in a similar vein.
I have already concluded that employee Robin-
son was not threatened by employee Owens, as al-
leged. The only issues left in this case, therefore,
are the alleged surveillance by Union Representa-
tive Daniel, the placarding outside the voting area,
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the alleged lack of privacy for voters within the
voting booth . I have previously concluded that
Daniel merely drove up Norton Avenue in leaving
the voting area as the polls opened and returned
when the polls closed and that this behavior did not
constitute surveillance . Even assuming that Daniel
remained for a short time within the voting area
after the polls opened , as testified to by employee
Byrd , I doubt that such behavior could invalidate
the election. The Board has stated that "brief
forays into the election area alone may not tend to
interfere with the free choice of the employees."
Performance Measurements Co., Inc ., 148 NLRB
1657. Nor would the presence of several persons on
the walk outside the snackbar disturb the voters'
free choice , in the absence of any evidence of dis-
orderliness or coercive conduct . Sewanee Coal
Operators ' Association , Inc., 146 NLRB 1145. I can-
not regard the act of Forbus in making the sign of
an "X" to a voter as coercive conduct , particularly
when Mrs. Hicks , to whom the sign was made,
testified that she did not know whether Forbus
meant for her to vote for the Company or for the
Union.
As respects the "vote yes " sign exhibited on the
car outside the snackbar , I have already concluded
that that sign was not visible to the voters. Even if it
were , such placarding by unidentified persons
would not invalidate the election. Sewanee Coal
Operators ' Association, Inc., supra at 1147.
Finally with respect to the lack of privacy argued
by counsel for the Employer , it must be noted that
the men who were permitted to stand behind the
counter waiting their turn to vote , with the possible
exception of Murray , were entitled to vote a chal-
lenged ballot and did so vote . The mere fact that
they were permitted to stay in the room where the
employees convened to vote did not affect the
privacy of the voting act itself which took place
within an enclosed booth . Even had they mingled
with the other voters , which they did not , it would
not warrant setting aside the election, in the
absence of evidence affecting the secrecy of the
ballot . Choctaw Provision Co., Inc ., 122 NLRB 474.
Nor is the mere presence of a supervisor within the
polling area sufficient to vitiate an election where
he appears to vote without further incident . Brown-
Dunkin Company , 118 NLRB 1603 . This was all
that Murray did, apparently under the mistaken be-
lief that he would be allowed to vote . When told
otherwise, he left immediately.
Counsel for the Employer makes much of what
he calls "an atmosphere of fear ." He speaks of the
laid-off employees being "concentrated in a menac-
ing group , staring directly at the approaching
voters," and "employees were afraid ." The record
simply does not support the description given by
counsel for the Employer that the group was either
menacing or staring.
Counsel also cites the opinion of the court of ap-
peals (379 F.2d at 244 ) on this matter remanding
the case to the National Labor Relations Board:
The Courts have usually applied an objective
test to determine whether interference with an
election is sufficient to set it aside. See
N.L.R.B . v. Trancoa Chem . Corp ., 1 Cir., 1962,
303 F . 2d 456 , 461; N.L .R.B. v. Trinity Steel
Co., 5 Cir ., 1954, 214 F . 2d 120 , 123. Subjec-
tive evidence of fear and coercion , however,
may carry the day as well . N.L.R.B . v. Tampa
Crown Distributors, 5 Cir ., 1959, 272 F . 2d 470.
The Board has expressed the rule of law in
somewhat different language:
... the numerous statements and conduct by
various responsible groups and individuals in
the community ... reasonably conveyed the
view to the employees that in the event of
unionization the Employer would shut down its
plant and other employers would not locate in
the community . Accordingly , we find that such
conduct created a general atmosphere of fear
and confusion which precluded the holding of
a free election . [James Lees & Sons Company,
130 NLRB 290.] [Emphasis supplied.]
... the Employer 's own campaign augmented,
and was augmented by, repeated pressures by
responsible members of the community. [Henry
I. Siegel Co ., 62 LRRM 1629 .] [ Emphasis sup-
plied. ]
In evaluating preelection conduct , the Board
concerns itself with whether the specific act
reasonably tends to interfere with a free choice
of representatives , and not with the subjective
reaction of employees to the alleged inter-
ference , and it accords less weight in this con-
nection to conduct by a nonparty to the case
than to conduct of the parties . [ Allied Plywood
Corp., 122 NLRB 959.] [Emphasis supplied.]
All of the "specific " acts of alleged interference
were committed by persons other than the parties
in this proceeding , the Employer and the Union.
Even were I to assume that the acts of interference
were committed during the critical period, I would
be obliged to give less weight to such evidence and
I could not conclude that such behavior reasonably
tended to interfere with a free choice of representa-
tives on election day . Vague uneasiness , discom-
fort , and the other "feelings" experienced by some
of the witnesses appear to be merely emotional
reactions unattributable to any specific acts of in-
terference within the critical period . Under such
circumstances, to allow these baseless fears to in-
validate an election could permit the invalidation of
any election held under any circumstances.
Counsel for the Employer cites Imperial Reed &
Rattan Furniture Co., 118 NLRB 911, where the
Board set aside an election for lack of privacy
although there was no evidence that anyone could
see how the ballots were marked . In that case, how-
ever, there was no enclosed voting booth as here.
Instead , voters marked their ballots at a table which
was only partially screened from view so that others
in the voting area could actually see the ballots as
FOREMOST DAIRIES OF THE SOUTH 1253
the voters placed them on the voting table. The
Board held that "the improvised voting arrange-
ments were entirely too open and too subject to ob-
servation to insure secrecy of the ballot and
freedom of choice by the employees in the selec-
tion of a bargaining representative ." Here the most
that can be said is that it was possible under some
circumstances for someone, standing in the precise
position which would permit him to see through a
crack in the enclosure, to be able to view the back
of the voter as he stood within the voting booth.
This can hardly be deemed "open ... and subject
to observation." Compare also Royal Lumber Com-
pany, 118 NLRB 1015.
Counsel for the Employer also argues that the
election be set aside because the surveillance, in
part, was conducted by "the very people who made
the threats which created an atmosphere of fear."
Insofar as that alleged atmosphere of fear was
created by rumors, it does not appear that any of
the men standing behind the counter had spread
such rumors. Insofar as that alleged atmosphere of
fear was created by alleged threats, it does not ap-
pear that Owens who was alleged to have
threatened Robinson was one of the men standing
behind the counter. Moreover, I have found that
Owens did not make the threat attributed to him.
As respects Stegall's story of two employees
"grabbing" him and then seeing these employees be-
hind the counter, I have concluded that their ac-
tions did not constitute a threat. Similarly, I have
concluded that Cooper did not threaten Stegall
when he asked Stegall to go to the woods for a
meeting. It does not, therefore, appear that any of
the men standing behind the counter participated in
any coercive conduct either before the election or
during the election.
Counsel for the Employer also cites N.L.R.B. v.
Tampa Crown Distributors, 272 F.2d 470, which
was also cited by the Court of Appeals for the Fifth
Circuit in its remand of this case . There the court
concluded:
... the evidence establishes fear in the minds
of two voters of a total number of eight, that
fear affected their votes , and that, had it not
been for that fear , the results of the election
might have been different.
The only testimony establishing that fear affected
any votes was the testimony of employee Stegall
whose testimony I have found unpersuasive and not
credible . Nor is the character of the alleged threats
in this case as serious as that in the Tampa Crown
case where two of the eight employees in the voting
unit received telephone calls in which they and
their children were threatened with physical harm
and the Union was mentioned specifically . It cannot
be said that in this case the conduct of others dur-
ing the election campaign period was of such an ag-
gravated character as to create a general at-
mosphere of fear and reprisal rendering a free ex-
pression of choice of representatives impossible.
Diamond State Poultry Co., 107 NLRB 3; Poinsett
Lumber and Manufacturing Company , 116 NLRB
1732.
CONCLUSION OF LAW
The conduct of the election complained of and
proven by credible evidence does not furnish a
basis for setting aside the election.
RECOMMENDATION
It is recommended that the objections of the Em-
ployer to the election of July 29, 1965, be over-
ruled, the Union certified, and the Order of the
Board at 160 NLRB 8 be affirmed.