Fruehauf Corp.

National Labor Relations Board - Board Decisions

Feb 27, 1985

274 N.L.R.B. 403 (N.L.R.B. 1985)

FRUEHAUF CORP
Fruehauf Corporation and Truck Drivers and Help-
ers Local Union No. 568, a/w International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Cases 15-
CA-8201 and 15-RC-6691
27 February 1985
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 22 October 1984 Administrative Law Judge
Richard J. Linton issued the attached supplemental
decision. The General Counsel filed exceptions and
a supporting brief, and the Respondent filed cross-
exceptions and a supporting brief. The Respondent
also moved to strike the exceptions of the General
Counsel. I
The Board has considered the decision and the
record2 in light of the exceptions and briefs and
has decided to affirm the judge's rulings, findings,
and conclusions and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
IT IS FURTHER ORDERED that the election held
on 16 October 1980, in Case 15-RC-6691 is set
aside and that Case 15-RC-6691 is remanded to the
Regional Director for the purpose of conducting a
second election.
[Direction of Second Election omitted from pub-
lication.]
' On 16 October 1980, the election was conducted pursuant to a Stipu-
lation for Certification Upon Consent Election The tally of ballots shows
12 for and 6 against the Petitioner , there were no challenged ballots The
Board adopted the recommendation of the Acting Regional Director to
overrule the Respondent's objections and certify the Union (13 April
1981) (not included in the Board's bound volumes ). Upon the Respond-
ent's alleged refusal to bargain, the Board granted the General Counsel's
Motion for Summary Judgment and found the Respondent violated Sec
8(a)(5) 265 NLRB 1295 (1982) The Fifth Circuit denied enforcement to
the Board 's Order, remanded the proceeding to the Board for a complete
record, and set aside the certification 720 F 2d 1398 (5th Cir 1983) The
Board then remanded the case to the Regional Director who, in turn,
consolidated the election objections and unfair labor practice proceeding
for a hearing before an administrative law judge.
In light of the Board's disposition of the case herein, the Respond-
ent's motion to strike the General Counsel 's exceptions is denied
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON , Administrative Law Judge. This
case of employer objections to a union victory in an
403
election conducted on October 16, 1980, appears in the
context of an unfair labor practice proceeding because of
the consolidation with a "technical" 8(a)(5) complaint
after a remand from the United States Court of Appeals
for the Fifth Circuit for the purpose of holding a hearing
to develop a complete record on the objections. Based
on the evidence of a full record, I find that the Union
polluted the election atmosphere, and I recommend that
the Board dismiss the complaint in Case 15-CA-8201
and remand Case 15-RC-6691 for a second election.
The case was tried before me in Shreveport, Louisi-
ana, on July 26, 1984, pursuant to the July 9, 1981 com-
plaint issued by the General Counsel of the National
Labor Relations Board through the Acting Regional Di-
rector for Region 15 of the Board, and the May 24, 1984
order of the Regional Director consolidating Case 15-
CA-8201 with Case 15-RC-6691. The complaint is based
on a charge filed June 10, 1981, by Truck Drivers and
Helpers Local No. 568, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Union or Local 568) against Fruehauf Corpo-
ration (Respondent or Fruehauf).'
In the complaint the General Counsel alleges that Re-
spondent violated Section 8(a)(5) and (1) of the Act since
about December 26, 1980, by refusing to recognize and
bargain with the Union because of Respondent's desire
to test the correctness of the Union's certification in Case
15-RC-6691. The representation case involves objections
filed by Fruehauf to an election conducted by the Board,
through the Regional Director, on October 16, 1980,
which the Union won.
By its answer Respondent admits certain factual mat-
ters but denies violating the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,2
I make the following
FINDINGS OF FACT
I. JURISDICTION
A Michigan corporation with a facility located in
Shreveport, Louisiana, Respondent sells and services se-
mitrailers and truck equipment parts. During the past 12
months, Respondent purchased and received materials
and services valued in excess of $50,000 directly from
' All dates are for 1980 unless otherwise indicated
2 Respondent also submitted a two-page reply brief dated August 31,
1984 As the Board's Rules make no provision for reply briefs, the filing
of such is a matter addressed to the administrative law judge's discretion
J & J Drainage Products Co, 269 NLRB 1163 (1984), Coca-Cola Bottling
Works, 186 NLRB 1050 fn 2 (1970 ) However, it is improper not to ac-
company the reply with a motion for leave to file the reply brief and, on
motion, the reply brief may be stricken for that reason Xidex Corp, 238
NLRB 1208 In. 3 (1978) See also Save-It Discount Foods, 263 NLRB 689
In 1 (1982), and Michigan Bell Telephone, 240 NLRB 945 fn 1 (1979), in
the analogous situation of reply briefs filed with the Board at the excep-
tions stage Although Respondent did not include a motion for leave to
file its reply brief, I note that the brief is very short, that it essentially
does not contain any new matter , and that review of the reply brief
would not delay my decision herein Accordingly, in the exercise of my
discretion, I have considered Respondent's reply brief I deny the Gener-
al Counsel's September 19, 1984 motion that the reply brief be stricken.
274 NLRB No. 67
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
points located outside the State of Louisiana . I find that
Fruehauf is an employer within the meaning of Section
2(2), (6), and (7) of the Act
11. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Truck Drivers and
Helpers Local Union No. 568, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A Procedural Matters
1. Background
Pursuant to a Stipulation for Certification Upon Con-
sent Election approved September 22, 1980, in Case 15-
RC-6691, by the Acting Regional Director for Region
15, a secret-ballot election was conducted on October 16,
1980, among employees of the following stipulated unit:
All service department employees, including me-
chanics and helpers, employed by the Employer at
its facility located at Shreveport, Louisiana, exclud-
ing all parts department employees, office clerical
employees, branch clerical employees, sales employ-
ees, professional employees, administrative employ-
ees, technicians, guards, and supervisors as defined
in the Act.
Local 568 won the election by a vote of 12 to 6. None
of the approximately 20 eligible voters cast challenged
ballots. By letter dated October 22, Fruehauf filed a
timely objection.3 The text of Respondent's letter-objec-
tion reads:
Fruehauf Corporation hereby files its Objections To
Conduct Affecting The Results Of Election in the
above-designated case. During the period between
approval of the election agreement and the holding
of the election, agents, servants, representatives and
supporters of the Petitioner Union threatened and
harassed eligible voters and threatened them with
bodily harm The conduct of the Petitioner created
an atmosphere making a free and fair election im-
possible. Provincial House, Inc., 209 NLRB 215;
Steak House Meat Company, Inc, 206 NLRB 28.
Because of the fear of reprisals by the Petitioner
Union, we have chosen not to set forth the names
of those threatened and harassed herein. We are
prepared to furnish such information to a represent-
ative of the NLRB and request that you conduct a
further investigation concerning Petitioner's con-
duct.
3 The petition in Case 15-RC-6691 was filed September 19, 1980 That
date opens the preelection critical period in cases involving a Stipulation
for Certification Upon Consent Election Goodyear Tire and Rubber Co,
138 NLRB 453 (1962) The same rule, date petition filed, is applied in
contested cases where a decision and direction of election issues by a Re-
gional Director Ideal Electric & Mfg Co, 134 NLRB 1275 (1961)
A copy of this letter is being simultaneously mailed
to the Petitioner A Statement of Service is attached
hereto.
Following an investigation by Region 15 of Respond-
ent's objections, the Acting Regional Director issued his
report of December 2, 1980, in which he recommended
that the objections be overruled and Local 568 certified.
The Board adopted the recommendation and certified
the Union on April 13, 1981, by its Decision and Certifi-
cation of Representative (not included in the Board's
bound volumes).
Respondent admits that beginning about December 8,
1980, and at all times thereafter, including April 21, 23,
and 28, 1981, the Union has requested Respondent to
meet and bargain, and that Respondent has declined. Re-
spondent further admits that about December 26, 1980,
and at all times thereafter, including May 22 and 26,
1981, Respondent has refused to recognize or bargain
with the Union Finally, Respondent admits that it has so
refused because it desires to test the correctness of the
certification in Case 15-RC-6691.
On June 10, 1981, the Union filed the refusal-to-bar-
gain charge in Case 15-CA-8201. Complaint issued July
9 as mentioned earlier. On July 22 the General Counsel
filed a Motion for Summary Judgment in Case 15-CA-
8201. On December 16, 1982, the Board granted summa-
ry judgment and ruled that Respondent had violated
Section 8(a)(5) of the Act by refusing to recognize and
bargain with the Union. Fruehauf Corp., 265 NLRB 1295
(1982).
By its decision of December 12, 1983, the Court of
Appeals for the Fifth Circuit denied the Board's applica-
tion for enforcement, set aside the certification of the
Union, and remanded the case to the Board for a com-
plete record 720 F.2d 1398 (5th Cir. 1983).'
The Board, by order dated May 4, 1984, remanded
Case 15-CA-8201 to the Regional Director. As noted
above, on May 24 the Regional Director issued his order
consolidating Cases 15-CA-8201 and 15-RC-6691 and
setting them for a hearing before an administrative law
judge.
2. Respondent's motion to dismiss
Near the beginning of the hearing, Respondent filed a
motion to dismiss the complaint in Case 15-CA-8201 and
proceed with a hearing on objections in Case 15-RC-
6691 (R. Exh. 2). In its motion, in oral argument at the
hearing, and in its posthearing brief, Fruehauf contends,
in effect, that the complaint must be dismissed because
the circuit court's remand declared the certification void.
Thus, Respondent argues, the Union and the General
Counsel must return to "GO" and start over with, first, a
hearing on objections. If the objections are overruled,
then the Board may issue a new certification, followed
by a request to bargain by the Union, a new refusal to
bargain by Respondent, and then a new technical 8(a)(5)
complaint by the General Counsel. The Boards and the
4 As we shall see, one of the early issues to be discussed is the proce-
dural effect of setting aside the certification
5 Salem Village 1, 263 NLRB 704 (1982)
FRUEHAUF CORP
courtsa have rejected this argument because of the delay
it involves
At the hearing I denied Respondent's motion? and I
reaffirm that ruling The argument advanced by Re-
spondent in this case is without merit. Salem Village I,
263 NLRB 704 (1982). In short, the certification is not
void, but merely temporarily set aside pending the out-
come of a hearing on Respondent's objections. If the ob-
jections are overruled, then the Board will follow its
longstanding procedure of reaffirming its decision and
order in the underlying technical 8(a)(5) case. See, for
example, Beaird-Poulan Division, 247 NLRB 1365 (1980),
enfd. 649 F.2d 589 (8th Cir. 1981).
The Board's decision in the underlying case provides,
in accordance with cited cases such as Mar-Jac Poultry
Co., 136 NLRB 785 (1962), that "we shall construe the
initial period of certification as beginning on the date Re-
spondent commences to bargain in good faith with the
Union as the recognized bargaining representative in the
appropriate unit." 265 NLRB at 1298. Thus, the Board's
order takes into consideration the possibility of appeals
or other delays so that the initial certification year is
postponed until the legal proceeding is final and Re-
spondent commences to bargain in good faith
Respondent cites cases standing for the proposition
that an employer cannot be required to bargain until a
valid certification has issued. Those cases are inapposite
and do not address the point Respondent has raised here.
Reliance on those cases is simply another version of its
theme that the certification here is void and therefore the
process must start all over.
Another aspect of Respondent's position is that the
consolidation of the unfair labor practice case (the C or
ULP case) with the representation case (the R case) prej-
udices it
The procedure for a C case, which the General Coun-
sel prosecutes under Section 10 of the Act, is adversary
in nature. By contrast, the Regional Director, as the
Board's agent, processes an R case as investigative and
nonadversary under Section 9 of the Act The cases have
recognized this distinction for many years See, for ex-
ample, Salem Village, supra; Bill's Institutional Commis-
sary Corp., 186 NLRB 597 fn. 5 (1970). And the field
manual for the Board's Regional Offices explicitly pro-
vides in Section 11422, at 188, that hearings on objec-
tions are not adversary. 2 NLRB Casehandling Manual
(April 1984) Thus the first paragraph states
11422 Nature and Objective- A hearing on
objections/challenges is a formal proceeding de-
signed to elicit information on the basis of which
the regional directors or Board may discharge
their/its duties under Section 9 of the Act. As such,
insofar as the Government is concerned, it is inves-
tigatory and not adversary
Because C cases are adversary and adjudicative, they
are subject to the Administrative Procedure Act (APA).
6 NLRB v Commercial Letter, 496 F 2d 35, 38 (8th Cir 1974), Barrus
Construction Co v NLRB, 483 F 2d 191, 195 (4th Cir 1973)
' References to the one-volume transcript of testimony are deleted
from publication
405
On the other hand, as R cases are merely investigative
and nonadversary, they are exempt from the APA's pro-
visions Willett Motor Coach Co., 227 NLRB 882, 887
(1977).
Respondent contends that it was prejudiced by having
to operate in the context of a consolidated "C" and "R"
case when what is really involved is a hearing on its ob-
jections. In addition to that global complaint, Fruehauf
protests that the General Counsel's trial attorney became
an advocate during the portion of the proceeding when
evidence on Respondent's objections was heard. Re-
spondent does not point to any specific prejudicial effect
resulting from the General Counsel's dual role.
The General Counsel's longstanding consolidation pro-
cedure, and the dual role it casts on the General Coun-
sel's trial attorney, has been approved by the Board and
the courts in many cases. See, for example, Salem Vil-
lage, supra, Beaird-Poulan Division, supra; Polyflex M Co,
258 NLRB 806 fn. 4 (1981), Bancroft Mfg. Co., 210
NLRB 1007, 1011 (1974), enfd 516 F 2d 436, 446 (5th
Cir. 1981); NLRB v. Commercial Letter, 496 F.2d 35, 38
(8th Cir. 1974), Barrus Construction Co. P. NLRB, 483
F.2d 191 (4th Cir. 1973); Bill's Institutional Commissary
Corp., 186 NLRB 597 fn. 5 (1970), remanded on other
grounds 449 F.2d 694, 696 (5th Cir. 1971).
As the court observed in this connection in Barrus
Construction Co. v. NLRB, 483 F.2d 191, 195 (4th Cir.
1973), due process concerns itself with substance and not
with form.
This brings us to a consideration of the procedural
context and sequence followed in the instant hearing.
First, the nature of the instant case "is a supplementary
unfair labor practice proceeding in which Respondent
has the burden of going forward with the evidence and
the ultimate burden of proof." Beaird-Poulan Division,
247 NLRB at 1366 Even so, the purpose of the remand
was to allow for a complete record to be developed on
Fruehaufs objections.
There perhaps is more than one evidentiary sequence
which can be followed in these consolidated cases. In
any sequence, once the evidence reaches the objections
stage, the General Counsel's adversary role in the "C"
case is superimposed over the nonadversary role of the
Regional Office in the "R" case Another quotation from
the Casehandling Manual may be helpful Section
11424.4, at 190, provides:8
11424.4 Counsel for the Regional Office-Functions
and Duties: The primary function of counsel, if one
is utilized, is to see that evidence adduced during
the Region's investigation becomes part of the
record.
The counsel may voice objections, cross-examine,
call, and question witnesses, and call for and intro-
duce appropriate documents If the information in
his/her possession warrants it, he/she should seek
9 Sec 11424 4 of the Casehandling Manual and Sec 101 20(c) of the
Board's Rules and Regulations are cited by the court in Barrus Construc-
tion Co v NLRB, 483 F 2d 191, 195 fn 4 (1973)
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to impeach the testimony of witnesses called by
others
Counsel for the Regional Office should not offer
new material until it is certain it will not be offered
by one of the parties. Moreover, in this respect and
in attacking evidence which has been presented,
he/she must exercise self-restraint. He/she must be
impartial, and he/she must display the appearance
of impartiality.
Counsel for the Regional Office should be thor-
oughly familiar with the contents of the regional
case file and, during the hearing, should have it in
his/her possession and should assure that the evi-
dence adduced during the investigation is made part
of the record
In this connection, it should be noted that counsel
for the Regional Office does not have the duty of
sustaining the regional director's report or supple-
mental decision.
The Casehandling Manual makes no distinction con-
cerning hearings in which objections are consolidated
with a technical 8(a)(5) case 9 The latter normally occurs
following a remand from the Board or a circuit court re-
quiring a hearing on the objections.
In the usual unconsolidated objections case, the Re-
gional Office has no problem exhibiting an impartial ap-
pearance. But in a consolidated case, particularly one in-
volving a technical 8(a)(5), the task is complicated by the
presence of the ULP case.
In this case the General Counsel offered the pleadings
and rested in the C case. Local 568 offered no evidence
and immediately rested Fruehauf likewise offered no
evidence in the C case and rested. I denied Respondent's
motion that I direct the General Counsel to introduce all
documentary evidence (such as affidavits) which was
before the Acting Regional Director when the latter
issued his December 2, 1980 Report on Objections, ruled
that Fruehauf had the burden to proceed on its objec-
tions, and directed it to do so Respondent then began
adducing evidence in support of its objections.
I must digress for a moment. As the record reflects,
the parties and I held a second prehearing conference
call for the purpose of discussing the need of making
sure that the statements of the witnesses referred to in
the court's opinion, and whose statements were relied on
by the Acting Regional Director in his report, would be
made available to Fruehauf at the hearing. Counsel for
the General Counsel Clement J. Kennington expressed
his intention to cooperate fully. At the hearing Kenning-
ton described his efforts to locate all the witnesses re-
ferred to in the Acting Regional Director's report. He
advised us that he had secured statements from some of
the others referred to in the Acting Regional Director's
report and had the witnesses available at the hearing.
For its witnesses, Respondent called Benny L. Good-
win, Local 568's president and business agent , employee
Walter J. Blackburn, former employee Gregory B. Ste-
9 Presumably, therefore, the distinction is not perceived as being signif-
icant insofar as the nature of consolidated cases is concerned
phens (who was employed during the critical period),
employee J. P. Monroe, former assistant service manager
Thomas G. Rhodes (no longer employed at Fruehauf),
and Branch Manager Ronald C. Townsend. After each
witness had briefly testified, Respondent, under a proce-
dure worked out at the hearing, called for any affidavits
or statements each had given and the General Counsel
furnished them. This was followed by more examination.
Fruehauf then rested as to its objections.
At that point the General Counsel called four wit-
nesses. David G. Boothe, Joseph L Jones, Floyd Law-
rence, and J. B Caldwell All were employed during the
critical period, although Boothe had left Fruehauf in Jan-
uary 1981. Each is referred to by alphabetical letter in
the Acting Regional Director's report. The affidavits fur-
nished for Boothe, Jones, Lawrence, and Caldwell had
been taken shortly before the hearing by Counsel Ken-
nington.
Kennington represented that he had been unable to
locate three employees referred to in the December 1980
report as employees B, D, and G.10 It may be useful to
note that in his December 1980 report, the Acting Re-
gional Director, in addition to naming employee David
Boothe as an employee who allegedly had made threat-
ening remarks, also referred to nine other employees by
alphabet letters A through I Kennington accounted for
Boothe and the other nine. That is he announced that he
would be calling Boothe as a witness, and he identified
the other nine Fruehauf essentially was aware of Walter
J. Blackburn (C), J. P. Monroe (I), and apparently Greg-
ory B Stephens (A), since it had presented them (or at
least Blackburn and Monroe) as witnesses to the Region-
al Office during the initial investigation Branch Manager
Townsend testified that Stephens was presented as a wit-
ness to the investigating Board agent.
Thus, with the three employee witnesses called by
Fruehauf (A, C, and I), the three Kennington was unable
to locate (B, D, and G), and the three Kennington called
(E, F, and H), all nine employees referred to by the
Acting Regional Director were accounted for. i t Of
course, Boothe makes the 10th employee.
The accounting process was undertaken to comply
with the spirit of the remand. Thus, rather than simply
notifying Fruehauf that it had the burden to go forward
with all evidence on its objections, the Regional Office
made an affirmative effort, in the interest of assisting in
developing a full record, of actually tracking down wit-
nesses and taking statements from some of them. Counsel
Kennington served well in this respect.
Respondent contends that at the hearing the General
Counsel acted as an advocate during the objections por-
tion of the proceeding (Br. 7). In its reply brief, Fruehauf
even complains that the brief of the General Counsel "is
directed exclusively to representation issues and is adver-
10 Respectively, employees Travis Jackson, Robert Moore, and Chris
Stevens
11 In his December 1980 report, the Acting Regional Director ob-
served that the only employees presented during the investigation were
A (Stephens), C (Blackburn), and I (Monroe), plus Supervisor T G
Rhodes, Branch Manager R C Townsend, and Local 568 Business
Agent B L Goodwin
FRUEHAUF CORP
sarial in nature ." And in its initial brief, Respondent
moves that the brief filed on behalf of the General Coun-
sel be stricken because the General Counsel failed to act
impartially (Br. 13-14). The General Counsel's difficulty,
Fruehauf contends, stems from the consolidated nature
of the proceeding. In footnote 6 of Respondent's brief,
Fruehauf's counsel writes:
Having worked for the NLRB for five years, Coun-
sel for Respondent has a great deal of empathy for
the position in which the consolidated R Case-C
Case procedure places the government's lawyer. He
is required to be both fish and fowl but is not told
when to swim and when to fly Inevitably, he ends
up trying to fly in water and swim through the air.
Counsel's language is colorful, but it is less than de-
scriptive of the facts As to the facts, Fruehauf points to
various pages where it objected to the General Counsel's
use of leading questions in the manner of an advocate
during his cross-examination of Fruehauf's witness
Walter J. Blackburn. The General Counsel asserted that
he was cross-examining as an advocate because of his
dual role in the proceeding and that he was unable to say
from question to question when his roles would inter-
change. At one point in cross-examining Gregory B. Ste-
phens, the General Counsel again clearly was cross-ex-
amining as an advocate 12 I overruled Respondent's ob-
jections on this point
Even if I erred in overruling Respondent's objections
to the handful of leading questions propounded by the
General Counsel, the error was harmless. As with the re-
spondent in Polyflex M Co., 258 NLRB 806 fn 4 (1981),
Fruehauf has failed to point to any specific prejudice. I
find there was none. Moreover, Respondent was repre-
sented by experienced and able counsel-a factor the
courts consider. Beaird Poulan Division v. NLRB, 649
F.2d 589 (8th Cir. 1981), Barrus Construction Co. v.
NLRB, 483 F 2d 191, 195 (4th Cir. 1973).13
In consolidated cases involving allegations of discrimi-
nation (unlike a technical 8(a)(5) case), the Board and the
courts have sanctioned a rather generous leeway for the
Government's lawyer. See Barrus14 and Sahara-Tahoe
Hotel, 173 NLRB 1349 (1968).
12 Teamsters Local 568 was not represented by an attorney at the
hearing Respondent asserts, Br 5, that the General Counsel functioned
as the Union 's lawyer in addressing a matter of a subpoena duces tecum,
and in the manner of his cross -examining these witnesses The subpoena
matter arose near the beginning of the hearing and Counsel Kennington's
participation as to that was well within his legitimate function Whether
the General Counsel would have asked fewer or different questions had
Local 568 been represented by a lawyer is matter of speculation In at
least one other case an employer has complained that the General Coun-
sel was "carrying the ball" for the union in the representation case.
Sahara-Tahoe Hotel, 173 NLRB 1349, 1352 (1968) Although the adminis-
trative law judge found the General Counsel's extensive participation to
be improper in Sahara- Tahoe, the Board overruled the administrative law
judge
13 Indeed, Respondent 's counsel disclosed at the hearing that he was
the Respondent's attorney in Bill's Institutional Commissary Corp, 186
NLRB 597 (1970), and the slip opinion reflects his name as counsel as
does the published opinion by the Fifth Circuit ordering a remand 449
F 2d 694, 695 (5th Cir 1971)
14 In Barrus the court observed that the Board's attorney made 34 of
the 59 objections lodged at the hearing and joined in 9 of the union's 17
objections The court stated, "We think such participation insufficient to
407
Nevertheless, it is understandable that an employer
might consider it neither necessary nor proper for the
General Counsel in a consolidated case involving a tech-
nical 8(a)(5) complaint, as here, to press forward during
the objections stage so as to support, as an advocate, the
allegations of the technical 8(a)(5) complaint.
The very nature of a technical 8(a)(5) complaint is
quite different from other ULP complaints. The latter
normally involves allegations of discriminatory motive or
other bad-faith conduct. On the other hand, the only
way an employer can test the correctness of a certifica-
tion is to refuse to bargain-a "technical" 8(a)(5) viola-
tion allegation . In the latter situation, the ULP complaint
rests entirely on the validity of the election process.
In this case Fruehauf filed objections contending that
the election process was invalidated by certain conduct
and conditions. As we have seen, that portion of the case
is investigatory in nature. If the objections have merit,
my function normally is to recommend that the certifica-
tion be revoked. Salem Village I, 263 NLRB 704 (1982).
If the R case investigation results in revocation of the
certification, dismissal of the technical 8(a)(5) complaint
follows.
The Board in Salem Village expressly stated that in a
consolidated case involving a technical 8(a)(5) complaint,
"counsel for the General Counsel takes a nonadversary
role at the hearing as would be the case if the proceed-
ing had not proceeded beyond the representation stage."
263 NLRB 704. Nevertheless, in Beaird-Poulan Division,
247 NLRB 1365, 1366 (1980),15 Judge Marvin Roth
wrote, with Board approval, that the General Counsel
had discretion under Section 3(d) of the Act to proceed
as a litigant in a consolidated case rather than as a neu-
tral third party.
Whatever the precise rule is, it is clear that even in a
technical 8(a)(5) consolidated case, the' Board, as have
the courts, will look to see whether the Respondent suf-
fered any prejudice by the manner in which the General
Counsel has participated at the objection stage. See, for
example, Bill's Institutional Commissary Corp., 186 NLRB
597 fn. 5 (1970), remanded on other grounds 449 F.2d
694 (5th Cir. 1971). Indeed, the Board has held that in R
cases Regional Directors (and, thus, their attorneys at
hearings) are not held to an inflexible requirement of
strict neutrality.16 Willett Motor Coach Co., 227 NLRB
882, 887 (1977). After all, due process concerns itself
with substance rather than form. Willett Motor Coach at
887; Barrus Construction Co. v. NLRB, 483 F.2d 191, 195
(4th Cir. 1973).
I deny Respondent's motion to dismiss because of the
consolidation of the cases, I reject Fruehauf's contention
that it suffered prejudice by any conduct of Counsel
Kennington, and I deny, as without merit, Respondent's
motion to strike the General Counsel's brief.
establish such a degree of partisanship that would destroy the fairness of
the hearing " Counsel Kennington clearly did not become as active an
advocate here as the Board's attorney did in Barrus
Is A technical 8(a)(5) case
16 Sec 11424 4 of the Casehandling Manual, quoted earlier , certainly
authorizes the Board's attorney to be active , even vigorous , in assisting to
develop a full record
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Objections
1. Introduction
Benny L. Goodwin has been president and business
agent of Teamsters Local 568 since April 1979. At some
point, apparently around mid to late August 1980, Ben
Barrett, an employee of Respondent, contacted Goodwin
relative to organizing Fruehauf's employees. Goodwin
apparently gave Barrett a batch of authorization cards,
for a group of employees met after work with Barrett on
August 26, 1980, at a roadside park near Fruehaufs facil-
ity.17 Several employees signed cards at that roadside
park gathering. Goodwin testified, without contradiction,
that his only contact employee at Fruehauf was Barrett
Respondent contends that Barrett was the Union's
agent in the organizing campaign. As the record reflects,
Barrett was no more than a contact for Goodwin. Thus,
when the election date was scheduled, Goodwin sent
Barrett a letter, dated September 17, notifying him of the
details (R Exh. 3) Presumably Barrett informed his
fellow workers. There is no evidence that Goodwin held
Barrett out as an agent of the Union, paid Barrett for his
efforts, promised him anything of value to assist in orga-
nizing the employees, or even asked him to help orga-
nize. Indeed, so far as the evidence shows, the organiz-
ing idea originated with Barrett who was simply a rank
and file worker active in supporting the Union. J. B.
Caldwell, not Barrett, served as the Union's observer at
the October 16 election. However, David G. Boothe, an
employee during the period in question, testified that he
thought Barrett was no longer employed at election
time. I find that Ben Barrett was not the Union's agent.
Libbey-Owens-Ford Co. v. NLRB, 715 F.2d 291 (7th Cir.
1983)
Respondent apparently has abandoned any contention
that former employee David G. Boothe was the Union's
agent. Boothe attended union meetings, signed a union
card, and was a member of the agreed-upon bargaining
unit There is no evidence suggesting that he was the
Union's agent. Although Boothe allegedly made threats
of possible violence if neutral employees would not sup-
port a possible strike, there is no evidence showing that
Goodwin t 8 authorized Boothe to make these disputed
statements, ratified them, or even knew about them. I
find that the evidence fails to establish that Boothe was
an agent of Local 568.
Although neither Barrett nor Boothe was an agent of
the Union, statements attributed to them must be consid-
ered on the issue of whether there was a general atmos-
phere of fear and violence which rendered a fair election
impossible.
Goodwin testified that he conducted one meeting with
employees before the election petition was filed, and two
or three thereafter. The record reflects that his first
meeting was held at the union hall on Thursday, August
28-only 1 or 2 workdays before the petition was filed
11 Reference to "Data Park" in the transcripts should no doubt read
"at a park" as the phrase appears elsewhere
18 Goodwin testified, without contradiction, that he was the only rep-
resentative from Local 568 involved in the organizing campaign
on Tuesday (the day following Labor Day), September
2, 1980.
This case may well turn on whether Goodwin, at the
August 28 meeting, told the group that employees who
crossed any future picket line were subject to being shot.
Contending that the statement was made, and acknowl-
edging that it falls outside the usual time frame for objec-
tionable conduct, Fruehauf contends that the statement
had an objectionable impact on the election Respondent
argues that this is so because (1) the statement was made
to a majority of the unit,1 s (2) the threat was repeated
during the critical period and couched in terms of what
Union Official Goodwin had said, and (3) the statement
was made so close to the opening of the critical period
(Br. 25-26).
As to incidents predating the critical period, the
Board's established rule is that, although prepetition con-
duct may not be used as the basis on which to set aside
an election, the rule does not preclude consideration of
such conduct insofar as it lends meaning and dimension
to related postpetition conduct or assists in evaluating it
Shamrock Coal Co., 267 NLRB 625 (1983); Blue Bird
Body Co., 251 NLRB 1481, fn. 2 (1980), enfd 677 F.2d
112 (11th Cir. 1982).
2. The union meeting of August 28, 1980
At this initial meeting, Goodwin explained the union's
function and what he thought it could do for the em-
ployees. The meeting lasted an hour or so.
There is no dispute that during the meeting of August
28 the subject of a possible strike arose and an employee
inquired what would happen if someone crossed the
picket line At that point a sharp dispute arises in the tes-
timony. Former employee Gregory B. Stephens, who
was an employee during the period in question, testified
that Goodwin20 answered. "If you cross a picket line
you are subject to being shot."
Goodwin denies Stephens' version about anyone being
shot. According to Goodwin, when the subject of a pos-
sible strike was mentioned, he stated that he did not an-
ticipate a strike because the Teamsters had contracts
with the Company at other locations and Fruehauf was
an honorable company and would not push the employ-
ees into a strike. If a strike came, however, the employ-
ees would have to operate an orderly picket line, could
not block the entrance, and that he could not always be
there to hold their hands. At that point someone asked
what happens if someone crosses the picket line, and
Goodwin replied that the choice was an individual's
right to cross and work behind the line and "we could
not stop him."
19 Goodwin testified that of about 24 employees in the unit, between
20 and 22 attended the meeting of August 28, 1980 Gregory Stephens
estimates the number of employees attending at 15, and David Boothe
puts the number at between 12 and 15 Whatever the correct count, it is
clear that a majority of the unit was present
21 Although Stephens, by the passage of nearly 4 years, could no
longer recognize Goodwin the record is clear that Stephens was describ-
ing the meeting of August 28, 1980, and that the Union official to whom
he attributes the remark was Goodwin, and I so find
FRUEHAUF CORP
Goodwin's version was corroborated in its essentials
by former employee David G. Boothe, and employees
Joseph L. Jones, Floyd Lawrence, and J. B. Caldwell..
Stephens concedes that Goodwin did say that pickets
must conduct themselves in a lawful manner.
Stephens' version is consistent with that in his pretrial
affidavit of November 3, 1980 (G.C Exh. 7).21 Stephens
could neither recall giving a statement to a Board agent
nor authenticate his affidavit'22 and was dubious as to at
least a portion of his purported signature. He testified
that the address and telephone number listed on the first
page were the ones he had in 1980. He verified that the
signature on his authorization card was his own.23 Re-
spondent furnished certain original personnel records of
Stephens bearing his purported signature (R. Exhs. 7a-
7e). They are his employment application, skills state-
ment, medical form, and state and Federal tax exemption
forms (L-4 and W-4, respectively). I have compared the
signatures on these forms, and on the authorization card,
with the signature on the pretrial affidavit, and I find
that the signature on the pretrial affidavit is that of Ste-
phens.24
The pretrial statements of Goodwin (R. Exh. 4),
Boothe (R. Exh. 8), Jones, Lawrence, and Caldwell were
not secured until July 1984.
Notwithstanding his inability to recognize either his af-
fidavit or Goodwin's, Stephens was very positive in testi-
fying that he had not forgotten Goodwin's threat.
I closely observed the witnesses as they testified.
Based on demeanor, I credit Stephens, and I reject the
contrary testimony of Goodwin, Boothe, Jones, Law-
rence, and Caldwell. Thus, I find that at a union meeting
on August 28, 1980, Business Agent Goodwin told a ma-
jority of the bargaining unit that any employee who
crossed a future picket line was subject to being shot.
3. David G. Boothe's alleged remarks
a. Washroom threat to Gregory Stephens
Fruehauf provides a washroom with a large, circular
wash basin for employees to use. About 10 feet from the
basin is the area where the toilets and urinals are located.
Adjoining the washroom, and connected by a door, is a
separate locker room some 15 to 20 feet from the wash
basin.
Si The execution date shown of October 19, 1980, is obviously wrong
As the date on the pretrial affidavit of Walter J Blackburn is November
3, 1980, and as both statements were taken by the same Board agent, I
find the correct date to be that appearing on Blackburn's affidavit (G C
Exh 6)
22 As earlier mentioned here, Branch Manager Townsend testified that
Stephens was presented to the investigating Board agent
23 Stephens attempted to obtain the return of his card from Local 568
after hearing Goodwin's "subject to being shot" threat
24 Administrative Law Judges frequently make signature comparisons
and findings See, e g , Sertafilm, Inc, 267 NLRB 682, 686 ( 1983) (com-
paring from signatures on payroll checks for employees Paula Jackson
and Zenobia Marshall), Gordonsville Industries, 252 NLRB 563, 600 (1980)
(from W-4 forms) Indeed, it is error for an administrative law judge to
refuse to at least attempt such a comparison notwithstanding his protesta-
tion of not being a handwriting expert Ken's IGA, 259 NLRB 305 fn 2,
311 fn 7 (1981), modified on other grounds 697 F 2d 798 (7th Cir 1983)
409
Around October 3,25 Stephens was joined at the wash
basin by Boothe. It was at the end of the workday, and
employee Travis Jackson possibly was at the wash basin
also.26 Boothe, Stephens testified, asked the latter wheth-
er he would join a strike if the employees did get the
Union and there was a strike. Stephens replied, "No, I
have bills to pay." Boothe responded, "Do you know
that if you cross the picket line you are subject to being
shot?" Stephens asked, "Are you threatening me?"
Boothe answered, "No." At that point Stephens and
Boothe noticed that Assistant Service Manager Thomas
G. "Dusty" Rhodes was standing at a urinal about 8 to
10 feet away. There was no more conversation.
Stephens' pretrial account has a slight variation (G.C
Exh. 7). After giving Boothe a "no," that he had "bills
to pay," Stephens, in his pretrial affidavit, records that
Boothe asked "Why not?" To this Stephens replied that
one of the reasons was because the "Union man" (whom
Stephens identifies two paragraphs later as Benny Good-
win) said at the meeting that anyone crossing a picket
line "could get your ass shot " The statement continues:
Boothe: He could be right.
Stephens: Are you threatening me?
Boothe: No.
Boothe argees that there was a conversation at that
time and location, but places J. B. Caldwell in the wash-
room in addition to Stephens and possibly Travis Jack-
son. He denies that Rhodes was present. Caldwell testi-
fied that he never heard any conversation in the wash-
room between Boothe and Stephens before the election.
Floyd Lawrence testified that he overheard the conver-
sation from the locker room where he was changing
clothes, and he named J. B. Caldwell as one of those
present 27 The demeanor of Lawrence was totally unper-
suasive
Moreover, there is no evidence that Boothe and Ste-
phens spoke loud enough to be heard by someone in the
locker room. I do not believe that Lawrence heard a
single word of the conversation between Stephens and
Boothe any more than Caldwell who admits that he
heard nothing.
Boothe's version of the wash basin conversation is that
he asked Stephens if the latter was going to walk the
picket line if there was a strike. Stephens replied no, be-
cause he could not afford to miss work for he had a lot
of bills to pay. Boothe responded that they all had bills,
but every man had to do what he believes in, and
Boothe believed that they needed to do something about
the poor working conditions at Fruehauf.
Stephens, Boothe testified, then stated that Goodwin
had told him that anyone crossing the picket line could
be shot Boothe asked where Stephens got that idea, and
the latter said from Goodwin. Boothe testified (the testi-
mony is clarified at page 3 of his affidavit given the day
25 The pretrial affidavits of both Stephens (G C Exh 7 ) and Boothe
(R Exh 8) fix the date about this time
26 Travis Jackson did not testify As earlier noted, Counsel Kenning-
ton represented that he had been unable to locate Jackson
27 The description is imprecise, and it is unclear whether Lawrence
places Caldwell in the locker room or at the wash basin area
410 DECISIONS^OF NATIONAL LABOR RELATIONS BOARD
before) that he. had never-heard 'any such allegation
against Goodwin. Boothe denies -ever ,telling Stephens or
any employee that he could be shot Ffor crossing a picket
line.
The version of former Supervisor Rhodes is consistent
with that given by Stephens.
Stephens was a believable witness, but the demeanor
of Boothe was unpersuasive. I therefore find that Boothe
remarked as Stephens testified.
b. Lunchroom threat to Chris Stevens
Walter J. Blackburn testified that "2 or 3 months"
before the election he overheard a portion' of a conversa-
tion at the afternoon break in,the lunchroom in which
Boothe told Chris Stevens in the presence. of two or
three other employees, that he, Boothe, "was big enough
to whip Stevens' ass" if the latter did not vote the ,way
Boothe desired. Blackburn then turned and walked out.
Boothe is the only other person at this alleged conver-
sation who testified. Boothe denies the accusation and as-
serts that he and Chris Stevens got along at work.
Blackburn did not testify in a persuasive manner on
this subject and I do not credit him. Moreover, the ver-
sion he gave in his November 1980 affidavit is a strange
amalgam apparently merging the foregoing lunchroom
conversation, which he purported to describe at the
hearing, with the washroom conversation, between
Boothe and Gregory Stephens which he did' not under-
take to describe before me. In these unreliable circum-
stances, I do not credit Blackburn.
4. Sidewalk remark by Floyd Lawrence
Walter J. Blackburn testified that I or 2 weeks before
the election he and four or five other unit employees had
parked their vehicles and were walking toward the shop
about 7:45 a.m. Floyd Lawrence was the only employee
Blackburn could recall as being in the group As they
walked the employees were discussing the union matter.
Lawrence remarked: "Well, if I cross the picket line, I
get shot; and if I don't work, I will starve to death."
Blackburn's 1-1/2-page-pretrial affidavit, given less
than 3 weeks after the election, or about 4 to 5 weeks
after the asserted event, does not contain any description
of the incident (G.C. Exh. 6). Blackburn could not recall
whether he mentioned it to the Board agent, and does
not know why it was not included in his affidavit.
Lawrence denies making any such comment. He was
not asked whether he could have been walking with
Blackburn and other employees toward the shop. Pre-
sumably, however, it would not be unusual for employ-
ees to arrive at work at the same time and walk together
toward the shop. Thus, I find that the incident could
have happened. The question is whether it did.
Blackburn concedes that his memory of events in 1980
was better then than now. On the other hand , it is not
unusual for people to recall a significant remark from a
conversation although no longer able to remember,
nearly 4 years later, anything about the nature of the
conversation besides its general subject. Nor is it unique
that an employee will forget to mention an incident to a
Board agent. After all, the contents of a pretrial affidavit
depend largely on how searching are the questions of the
investigating Board - agent .' Baker Mfg. Co., 269 NLRB
794,,815 fn 72 ( 1984).
On this topic Blackburn -testified with a persuasive de-
.meanor, whereas the ademeanor , of Lawrence did not in-
spire • confidence in his testimony . I therefore find that
.Lawrence;.a bargaining unit , employee , made the remark
as described ', by Blackburn.
5. Parking lot threat by Ben Barrett
Blackburn described another incident not included in
his 1-1/2-page-pretrial affidavit. Again, Blackburn could
not, recall whether .he mentioned it to the Board agent
and-'had no explanation'for its omission from his affida-
vit.
According to `Blackburn, about 3 to 4 weeks before
the election he and Ben Barrett were sitting in a truck on
the parking lot at the 10 a.m. break., No others were
present. Barrett asked Blackburn which way he was
going to vote. Blackburn answered that he was undecid-
ed and was not going to tell anyone how he was going
to vote. Barrett replied that Blackburn had better vote
"the way we want you to or you might get your ass shot
off."
On cross-examination by the General Counsel, Black-
burn's version changed somewhat to assert that Barrett
asked him whether he was for or against the Union.
Blackburn said he was neutral and would vote the way
he wanted to. Barrett responded, "We had better go
union because if you don't, you might get shot when you
walk across the line." Blackburn said, "That is that," dis-
mounted from the truck and returned to the shop. Bar-
rett did not testify. Blackburn testified that he did not
tell any employee of Barrett's remark.
Blackburn did not testify with a persuasive demeanor
on this topic, and I do not credit him. I therefore find
that Barrett did not make the remarks attributed to him
by Blackburn. This is. not to say that they did not have a
conversation in a truck on the parking lot and talk about
the Union. I simply find that Barrett did not remark as
Blackburn described.
6. Rumors of being shot
Joseph L. Jones testified that there was a rumor going
through the shop that David Boothe had said that any
employee crossing a picket line could get shot. He thinks
the rumor was circulating after the election, but he really
is unsure of when the employees were discussing it.
J. B. Caldwell heard rumors that someone had made
the statement that people crossing the picket line would
be shot, but he could not recall whether it was before or
after the election that he heard it.
Floyd Lawrence denied that such rumors circulated
before the election. He testified that after the election a
meeting was held and the employees told that the elec-
tion had been overturned because someone had threat-
ened that employees crossing the picket line would be
shot. The timing called for in Lawrence's version is
strange . The Fifth Circuit did not set aside the certifica-
tion until its decision of December 12, 1983-over 3
years after the election.
FRUEHAUF CORP.
The demeanor of Lawrence was unpersuasive, and I .
do not credit him. Indeed, Jones and Caldwell testified
as if weighing their answers on the basis of whether such
answers supported the position of Teamsters Local 568.
It is true that none of the witnesses called by Fruehauf
testified of having heard the rumors. Nevertheless, the
testimony of Jones and Caldwell establish that rumors
circulated at some point that anyone crossing a picket
line could be shot. I do not believe Jones and Caldwell
concerning their inability to recall whether the rumors
were before or after the election. At one point Caldwell
in fact tentatively placed the rumors as beginning a few
days after the union meeting of August 28.
Existence of the rumors during the critical period is
entirely consistent with my findings that Business Agent
Goodwin made the threat on August 28 and that David
Boothe repeated it about October 3 to Gregory Ste-
phens.
Some of the employees sought to remain neutral
during the preelection period. Rumors that anyone cross-
ing a picket line could be shot could well have been cir-
culated for the purpose of coercing the neutral employ-
ees into supporting the Union. Whether that strategy is
rational or would be successful is not controlling.28
Whether it occurred, for whatever reason, is the ques-
tion . I find that rumors were circulating during the pree-
lection critical period that anyone crossing a future
picket line could be shot.
7. Conduct of anonymous perpetrators
a. Harassment of Gregory Stephens
Gregory B. Stephens credibly testified that unidenti-
fied persons, whom he suspected of being union support-
ers,29 poured oil all over (and perhaps in) his tool box,
packed his boots with wheel bearing grease, and caused
the disappearance of his clean uniforms. His recollection
of the timing was hazy, although he thinks most of this
occurred during the critical period.
His pretrial affidavit specifically dates the incidents as
follows (G.C. Exh. 7):
Oil on tool box-10-8-80
Grease in boots-10-21-80
Uniforms missing- 10-24-80
I find that the events occurred about the dates given in
the affidavit. Thus, only the oil on the toolbox occurred
during the critical period.
29 The voting unit here was only 20 employees of whom 18 voted,
with a union victory of 12 to 6 It is conceivable that, notwithstanding
the secrecy of the ballot box, undecided employees in such a small unit
might conclude that Union supporters could match noses with the tally
of ballots and that therefore the safest avenue would be to submit to the
will of those threatening potential violence Moreover , a desire to have a
bargaining unit willing to give unanimous support to any strike in order
to achieve bargaining demands is not unrelated to the tactic of support
through coercion
29 About an hour before the first incident a union supporter told Ste-
phens that he had seen cases at other firms where those against unions
would have their property mishandled
411
b. Telephone threat to Walter Blackburn
Walter J. Blackburn credibly described a telephone
call he received at his home on. October 13 from an un-
identified male caller.30 When Blackburn said hello, the
man calling asked how Blackburn was going to vote.
Blackburn said he had not yet decided. "You had better
vote it the right way," the caller said who then hung up.
In his pretrial statement, Blackburn asserts that the call
did not affect his vote in any way. Although Blackburn
was not asked whether he mentioned this incident to
other employees, he testified that he did not tell employ-
ees about the other incidents he described in his testimo-
ny.
c. Threat to J. P. Monroe
The Reverend J. P. Monroe, a Fruehauf employee
during the time in question, testified that about 1 or 2
weeks before the election a mechanic, whose name he
did not know, asked Monroe whether he was going to
vote for the Union.3 t Monroe answered no. The me-
chanic asked why. Monroe answered, because, he be-
lieved in righteousness , that he had thought it over,
prayed over it, "and the Lord showed me through the
Spirit not to vote for it." The mechanic replied, "Don't
you know that it may cost somebody's life?" Monroe
had no opportunity to respond because the mechanic was
called away at that point.32
Monroe testified that he told no employees about the
mechanic's remark, and that for awhile the remark con-
cerned him. At page 2 of his pretrial statement , Monroe
discloses that he did not know what the mechanic meant
by his remark.
I find that the incident occurred as Monroe describes
in his affidavit-refreshed testimony. I also find that while
Monroe did not understand just how his negative vote
could cost somebody's life, he nevertheless remained
concerned about the remark for some time. Admittedly
he told no other employee of the incident.
C. Analysis and Conclusions
Respondent's contentions that Case 15-CA-8201
should be dismissed because the certification is void, be-
cause that case was consolidated with Case 15-RC-6691,
and because the General Counsel's attorney served in a
dual capacity at this hearing (and with an asserted con-
flict of interest regarding a duty of impartiality in the
"R" case), have been treated earlier and rejected. That
brings us to Fruehauf's objections in Case 15-RC-6691.
Business Agent Goodwin's threat made at the August
28, 1980 union meeting cannot itself serve as the basis for
ordering a new election, for it falls outside the critical
period. Nor can the single threat of David Boothe, not
30 At the hearing he placed the date about a month before the election
The date of October 13, 1980, set forth in his pretrial affidavit of Novem-
ber 3, 1980, is probably more accurate
91 Monroe's recollection was poor, and his memory of the event had
to be refreshed in detail from his pretrial statement dated November 3,
1980 (R Exh 6) At the hearing he placed the incident as about 3 weeks
before the election, but in his affidavit he fixes the date as 1-2 weeks
before the election The affidavit appears to be more reliable
22 The conversation occurred in the washroom (R Exh 6)
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an agent of the Union, cause a new election. However,
Respondent argues that all the events, as found, tie back
to Goodwin, with the total impact being such as to
impair the free choice of the voters.
The General Counsel points to the fact that some of
the incidents were not even mentioned to other employ-
ees by the affected employee. Countering this, in effect,
Respondent observes that the change of only three votes
would have meant a tie vote and a loss by the Union.
Fruehaufs argument is persuasive. A month after Busi-
ness Agent Goodwin's August 28 threat to a majority of
the unit employees that anyone crossing a picket line was
subject to being shot, David G. Boothe repeated Good-
win's threat to Gregory B. Stephens. Before the election,
and during the "critical" period, rumors circulated
among most of the employees that anyone crossing a
picket line could be shot. J. P. Monroe was told by an-
other employee shortly before the election that a vote
against the Union may cost somebody's life, and employ-
ee Walter J. Blackburn received a telephone call from an
anonymous person just 3 days before the election that he
had better vote the "right" way.
A week or two before the election employee Floyd
Lawrence, speaking to Walter J. Blackburn and some
other employees, framed the dilemma facing the employ-
ees resulting from the Union's threat: "Well, if I cross
the picket line, I get shot; and if I don't work, I will
starve to death."
Goodwin's threat, I find, tainted the election atmos-
phere by virtue of its serious nature in conjunction with
the other circumstances previously discussed. Thus, the
Union's threat was made to a majority of the voters
practically on the eve of the preelection critical period.
The Union is therefore responsible for setting in motion
a chain of events in which union supporters, such as
David G • Boothe, repeated the threat, as in the specific
instance involving Gregory B. Stephens,.or as rumors to
practically all the bargaining unit. When these-factors are
considered in connection with the small size of the
voting unit, and the fact that a change of three votes
would have meant a union loss, it is clear that the Union
was responsible for destroying the required condition of
freedom of choice.
On these findings and conclusions, I make the follow-
ing33
RECOMMENDATIONS
I recommend that the Board sustain Fruehauf s objec-
tions to the election, revoke the Union's certification in
Case 15-RC-6691, dismiss the complaint in Case 15-CA-
8201, and remand Case 15-RC-6691 to the Regional Di-
rector for Region 15 for the purpose of conducting a
second election whenever the Regional Director deems
it appropriate. Because 4 years have elapsed since the
first election, I further recommend that the Regional Di-
rector be instructed to modify the standard notice of
election so as to include the Lufkin Rule notice.34
Lufkin Rule Co., 147 NLRB 341 (1964); Oklahoma City
Collection, 263 NLRB 79, 84 fn. 20 (1982).
33 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
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 pur-
poses
34 Also cited in sec 11452 1, at 197-198, of 2 NLRB Casehandling
Manual (April 1984)