Hickory Springs Mfg., Co.

National Labor Relations Board - Board Decisions

Dec 6, 1978

239 N.L.R.B. 641 (N.L.R.B. 1978)

HICKORY SPRINGS MANUFACTURING COMPANY
Hickory Springs Manufacturing Company and Gener-
al Drivers & Helpers Local Union No. 373, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Petitioner.
Case 26-RC-5653
December 6, 1978
DECISION AND CERTIFICATION OF
REPRESENTATIVE
The Board has considered the objections to an
election held January 6, 1978,' and the Regional Di-
rector's report recommending disposition of same. It
has reviewed the record in light of the exceptions and
briefs, and hereby adopts the Regional Director's
findings and recommendations 2 only to the extent
consistent herewith.
In Objection 2, the Employer alleges that there was
"[h]arassment of employees eligible to vote in the
representation election." The Regional Director con-
cluded that a hearing should be held for the purpose
of resolving certain of the issues raised by this objec-
tion. The Petitioner thereafter excepted to this con-
clusion contending that, even if the statements testi-
fied to by employee witnesses were made and/or
adopted by union officials, they did not constitute
grounds for setting aside the election.' We agree.
Each of the statements alleged to have been made
or adopted by union officials related to what actions
the Union would take in the event of a strike. Thus,
at a union meeting one employee allegedly stated
that if there were a strike and anyone crossed the
line, they should be "taken out and have the dog-
beat out of them." Another employee stated that, in
the event of a strike, if company trucks were caught
on the road, there were lots of teamsters and anyone
pulling a load would find themselves in a gully. An-
other employee cited a particular stretch of road
where this could be accomplished. It is alleged that
Union Representative Cecil Douthitt was present
when these statements were made but did nothing to
disavow or put a stop to them. At another meeting,
presided over by the president of the Local Union,
an employee asked what would be done in the event
of a strike. The Local's president replied that what-
The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was I I for. and 9 against. the Petitioner:
there was I challenged ballot, an insufficient number to affect the results
2The Employer requested a hearing on Objections I. 3. and 4. In our
opinion, the Employer's exceptions raise no material or substantial issues of
fact or law which would warrant reversal of the Regional Director's recom-
mendation to overrule those objections or require a heanng thereon.
In the absence of exceptions thereto, we adopt, pro forma. the Regional
Director's recommendation to overrule Objection 5
3The Petitioner denies that union officials engaged In such conduct.
ever would be necessary on the picket line would be
done. An employee stated that anyone who crossed
the line would "get it." Another employee purported-
ly stated that, if there was any stomping done, he
would be in the middle of it. The Employer's witness
said he echoed the sentiments of the last employee
and added that if anyone bothered his family "that
would be it." Finally, a question was raised about the
nonunion firm which leased its trucks to the Em-
ployer. The witness said that the Local's president
stated that "Ryder would be taken care of." 4
None of the above statements allegedly made or
adopted by the union officials involves any threat, or
even hint of threat, towards employees based on how
they would vote in the upcoming election. Thus the
remarks neither relate to events surrounding or con-
cerning the election nor were they calculated to
coerce employees to vote for the Petitioner.5 It is also
clear from the context of the remarks that they did
not relate to a possible strike before the election but
were made wholly in reference to some unspecified
time in the future after the Petitioner became the em-
ployees' bargaining representative and a strike was
called.6 In short, the alleged remarks assumed union
representation at the time the threatened action
would occur.
As we noted in The Great Atlantic and Pacific Tea
Company. Inc.,' "In these circumstances, it is there-
fore improbable that this type of verbal threat would
have a coercive effect on the employees as to cause
them to vote for the [Union]. 'For conduct to warrant
setting aside an election, not only must that conduct
be coercive, but it must be so related to the election
as to have had a probable effect on the employees'
action at the polls.'" 8 Thus, assuming, arguendo, that
the statements were made as alleged by the Em-
ployer, for the reasons stated above we find that the
conduct complained of was not likely to have
coerced the employees into voting in a particular
manner and thus could not have affected the out-
come of the election.9
Our dissenting colleague, Member Penello, accuses
us of, among other things, condoning union coercion
and restraint of and threats to employees during an
The remaining evidence with respect to this objection relates to the
conduct ,f rank-and-file employees outside the presence of union offictals.
The Regional Director correctly concluded that that conduct was not such
as to create a general atmosphere of fear and coercion.
Indeed, such statements would more likely have the opposite effect. If
ant at all. on emplosees who eschews violence.
There is not the slightest hint that the Petitioner or the employees in-
tended to engage in a strike prior to the election
177 NLRB 942 (1969)
In support of this proposition the Board cited N 1 R B v Zeclrich ( om-
pani. 344 F. 2d 101 1015 (5th Cir 1965)
VWe note that in directing it heanng on this tbjectllon the Regional I)lrec-
tor relles on Pr.ovinemal Hotue. In, 209 NIRB 215(1974) To the extent that
that case is Inconsistent with our determination herein, it is overruled
641
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election campaign, and he claims that we thereby are
encouraging overzealous unions to engage in threats
of violence against employees during an election
campaign. This, of course, is neither the intent nor
the likely effect of our decision.
If the Union here had threatened violence against
employees for voting against it, we would, of course,
have set this election aside. However, the evidence
adduced by the Employer which, for purposes of this
Decision, we deem to be true shows that prounion
employees, in the presence of a union agent, threat-
ened employees with violence if the employees
crossed a picket line of the Union. Inasmuch as there
was no picket line then in existence, nor was one
imminent, the so-called threats were thus condi-
tioned on the Union winning the election, the con-
tract negotiations with the Union failing, the Union
calling a strike, and some employees opting not to
honor the picket line. With these contingencies
standing between the threats and their possible exe-
cution, we perceive little if any likelihood of the
statements having any immediate coercive impact on
the employees and the election results.
Furthermore, the employees had it within their
power to blunt the threats entirely by voting-in the
secret-ballot election-against the Union. By so vot-
ing, the employees could avoid altogether the pri-
mary contingency on which the threatened conduct
was premised; namely, a union victory. Indeed, we
believe that the immediate effect of the Union's con-
duct, if any, would be to cause employees to be re-
pelled by it and to vote against it. Contrary to our
colleague, the Union's forecasts of future strike mis-
conduct were not reasonably related to the election
and its results and, therefore, did not destroy the
"laboratory conditions" in which Board-conducted
elections must be conducted. The Great Atlantic and
Pacific Tea Company, supra.
Our colleague's reliance on Ciervo Blanco, Inc. &
Blanco Venado, Inc.,"' and Servomarion of Columbus,
Inc.," is misplaced. Ciervo Blanco involved threats of
violence and actual serious strike misconduct by em-
ployees, in the presence of union representatives,
during the critical preelection period. Unlike this
case, in Ciervo Blanco the union engaged in violent
strike misconduct between May 28 and June 15 in
support of its recognitional and bargaining demands.
On June 15, the union and the employer entered into
a private strike settlement which, inter alia, ended the
strike and resulted in a Board-conducted election on
July 11. The union won the election and the em-
ployer filed objections. The Board there set the elec-
10211 NLRB 578, 579 (1974).
1 219 NLRB 504 11975).
tion aside on the grounds that, notwithstanding the
absence of violence for a period of 30 days immedi-
ately before the election, the actual violence had oc-
curred during the critical period after the petition
was filed and before the election. In Servomation, su-
pra, the alleged employee misconduct during the
critical period also occurred in the context of a strike.
There the Board adopted the Hearing Officer's find-
ing, based on his credibility resolutions, that the al-
leged conduct did not occur. However, even credit-
ing the employer's witnesses, the Board was satisfied
that the alleged employee misconduct did not create
such an atmosphere of confusion and fear as to war-
rant setting the election aside.
While we agree with our dissenting colleague's
statement that a violation of the Act during the
critical period constitutes grounds for setting aside
the election, he has cited no cases, and we have
found none, which hold that a union's preelection
threat of possible physical violence in the event em-
ployees cross a picket line at some remote future time
constitutes conduct proscribed by Section 8(b)(1)(A).
Accordingly, we shall overrule the Employer's Ob-
jection 2 and shall issue the following certification.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for General Drivers & Helpers
Local Union No. 373, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, and that, pursuant to Section 9(a) of the
National Labor Relations Act, as amended, the said
labor organization is the exclusive representative of
all the employees in the unit found appropriate
herein for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment,
or other conditions of employment:
All over-the-road truckdrivers employed at
the Employer's present Fort Smith, Arkansas,
location: excluding all production and mainte-
nance employees, office clerical employees,
guards and supervisors as defined in the Act and
all other employees.
MEMBER PENELLO. dissenting:
The majority opinion overrules the Board's deci-
sion in Provincial House, Inc., 2 wherein the Board set
aside an election because of a union representative's
campaign statement to employees that "the Union
had ways of taking care of people who tried to cross
its picket lines." In this case, union representatives
uttered and condoned a series of similar threats to
employees from the very first day after the Union
'1 209 N LRB 215 (1974)
642
HICKORY SPRINGS MANUFACTURING COMPANY
filed its petition until shortly before the election.
While Washington bureaucrats in their ivory towers
may engage in endless pedantic discussions as to the
precise meaning of such threats, the men and women
of the workplace know what they mean and this dis-
sent reflects an appreciation of that industrial reali-
ty.
13
As mentioned in the majority opinion, there were
two instances of threats condoned or espoused by
high union officials. On the day after the Union filed
its petition, a union meeting was held at the union
hall among 12 to 14 of the approximately 20 employ-
ees eligible to vote in the election."4 During that
meeting, several prounion employees threatened
their coworkers that, if there were a strike at the Em-
ployer's premises, anyone who crossed a union picket
line would be "taken out and have the dog- beat
out of them"; that any employee who drives one of
the Employer's trucks during a strike would find
himself "in a gully"; and that a particular stretch of
road would serve well for accomplishing the latter
threat. Union Representative Cecil Douthitt was
present when these threats were made and did not
disavow them nor attempt to put a stop to the
threats. Sometime thereafter during the campaign,
about nine employees attended another union meet-
ing over which the Local Union's president presided.
An interested employee asked the union president
what the Union would do in the event of a strike.
The president replied, "[W]hatever would be neces-
sary on a picket line." A prounion employee then
joined in and warned that anyone who crossed a
picket line "would get it." Another prounion employ-
ee threatened that "if there was any stomping [on
employees who crossed picket lines], he'd be in the
middle of it." Finally, another interested employee
raised a question about Ryder Truck Rental, a non-
union firm which leases trucks to the Employer. The
union president warned that Ryder "would be taken
care of."
In addition, the Regional Director described an-
other threat of violent reprisals against employees as-
serting their Section 7 rights. On a date shortly before
the election, six or seven of the Employer's drivers
were at a truckstop. During a conversation among
I1 also dissent from the majority's adoption of the Regional Director's
recommendation with regard to Objection I. That objection was based on
the Union's policy of forfeiture of prepaid union initiation fees and dues in
the event the Union lost the election. For the reasons set forth in my dis-
senting position in Aladdin Holel Corp., d/b /a Aladdin Horel, 229 NL.RB 499
(1977), I find that the application of such a policy constitutes objectionable
conduct and warrants setting aside the election.
i¢ The facts set forth therein assume the validit) of the statements prof-
fered by the Employer's witnesses to the Regional Director during his inves-
tigation, since the majority has overruled this objection of the Employer
without first proceeding to a hearing. I would have ordered a hearing on this
objection
the employees about the Union, an employee raised
the topic of what the Union would do in the event of
a strike. A prounion employee replied that there were
ways to stop the Employer from operating during a
strike and described how trucks could be burned and
run off the road and how drivers could be pulled out
of the trucks. No union officials were present during
the conversation.
The majority perfunctorily dismisses the relevance
of this threat on the basis that it was uttered by a
rank-and-file employee outside the presence of union
officials." However, prior to this time, union officials
had uttered and condoned threats that in the event of
a strike it would do "whatever would be necessary on
a picket line," including "beating the dog " out
of employees who dared to cross a picket line,
"stomping" on them, running their trucks into gul-
lies, and generally "taking care" of those who, like
Ryder, posed a threat to the Union's efforts. Thus,
the threat by the prounion employee to about six of
the Employer's drivers should also be attributed to
the Union since it coincided with and likely resulted
from the Union's espousal and condonation of
threats of picket line violence.
Notwithstanding the coercive nature of the above-
mentioned threats by union officials and prounion
supporters, the majority opinion overruled the Em-
ployer's objection and certified the Union as the em-
ployees' collective-bargaining representative. In sup-
port of its action, the majority relies on the argument
that none of the threatening statements "involves any
threat, or even hint of threat, towards employees
based on how they would vote in the upcoming elec-
tion." The majority also contends that "the remarks
neither relate to events surrounding or concerning
the election nor were they calculated to coerce em-
ployees to vote for the Petitioner." Finally, the ma-
jority concludes that "the conduct complained of
was not likely to have coerced the employees into
voting in a particular manner and thus could not
have affected the outcome of the election." As ex-
plained below, this reasoning by the majority is over-
ly simplistic and fatally flawed.
The majority's legal distinction between threats
that relate to the actual casting of ballots and threats
that relate to future labor confrontations ignores sim-
ple realities. Threats of violent reprisals for exercising
basic Section 7 rights in the future are clearly de-
signed to and inherentl) foster fear among employ-
ees. A natural and probable effect of such fear is that
employees will not only be restrained from exercising
Section 7 rights in the future but also in the present.
Stated somewhat differently, what employee would
reasonably believe that the Union's policy of "beat-
' See fn. 4 of the majorits opinion
643
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the dog- out of [employees who opposed its
efforts during a strike]" did not also apply to employ-
ees who opposed the Union's efforts to gain certifica-
tion? Moreover, the majority's legalistic hairsplitting
also assumes that "employees make such nice dis-
tinctions" 6 when bombarded by threats of bodily
injury from the Union and its overeager supporters.
In fact, the Board has never expected employees to
coldly analyze each particular threat uttered during
an election campaign.
A practical result of the Union's threats of violent
reprisals is the inhibition of any antiunion discussion
and politicking by employees during the campaign.
Clearly, this result has a devastating effect on em-
ployee free choice in the election. Even the most ar-
dent antiunion employees may have been restrained
from wearing antiumion buttons, handing out anti-
union campaign literature, and engaging in conversa-
tions among coworkers about the relative benefits
and detriments of unionization, especially when the
Union's threats of ruthlessness and violence had
been adopted fully by several supporters who seemed
prepared to carry out that policy if necessary.
The majority opinion also demonstrates a failure
to appreciate the basic issue in any election case in
which objections are filed-whether the "laboratroy
conditions" of the election campaign were fulfilled.'
Thus, the majority's suggestion that the Union's
coercive threats of bodily injury will more likely have
the effect of encouraging employees to vote against
rather than for the Union totally ignores the basic
issue in this case.' In that regard, it is patently clear
from the foregoing that the "laboratory conditions"
16 Ciervo Blanco, Inc. d Blanco Venado, Inc., 211 NLRB 578. 579 (1974).
1 For example, in Ciervo Blanco. supra, the petitioner established and
maintained a picket line in support of its demand for recognition For 6
days after the union filed its petition. picketers threatened and assaulted
employees who attempted to cross the picket line. However. the parties
entered into a settlement agreement whereby the union removed the pickets
and the employer agreed to an election stipulation. There was no objection-
able conduct for the 30 days before the election. The Regional Director
found that the effects of the earlier objectionable conduct had dissipated
since (I) the violence preceding the settlement agreement was directed to-
ward the effectiveness of the picket line rather than toward influencing the
election, and (2) there was a 30-day period of peaceful campaigning pnor to
the election. However. the Board reversed, concluding that since the objec-
tionable conduct occurred during the critical period the election should be
set aside, regardless of the 30-day period of peaceful campaigning. The
Board found that the fact that the violence was directed toward an object
other than the employees' choice in the election was of no relevance. In that
regard, the Board stated: "We have serious doubts that the employees made
such nice distinctions." Id. at 579. See also Servomation of Columbus. Inc..
219 NLRB 504 (1975), wherein the majority opinion stated: "Of course. if
threats or violence generates an atmosphere of fear or coercion which per-
sists to the date of the election and taints the conditions under which it is
conducted, the election will be set aside regardless of the . . .end to which
[the threats] were directed .... " Id at 506 (emphasis supplied).
I See General Shoe Corporation. 77 NLRB 124 (1948).
19 Moreover, it is just as likely that employees who were previously unde-
cided about how to vote were persuaded that there was little support against
union representation and that literally the safest course was to hop on the
union bandwagon.
were thoroughly polluted by the Union's and its sup-
porters' threats.
Finally, the majority opinion fails to fully and fair-
ly analyze the facts in this case when it broadly pro-
claims that none of the threats "relate to events . . .
concerning the election." It is self-evident from the
questions asked by employees and topics discussed at
union meetings that a significant issue in the election
campaign was the Union's policy in the event a strike
was called and the employees attempted to exercise
their Section 7 rights to refrain from engaging
therein.
Thus, it is readily apparent that in order to support
its conclusion the majority has attempted to fashion
an explanation which somewhat disingenuously fails
to consider all of the relevant threats to which the
employees were subjected and all of the likely effects
of the threats on the election campaign; which im-
poses upon the employees the obligation of making
subtle distinctions amid a torrent of threats; and
which fails to address the basic issue of whether the
"laboratory conditions" of the election campaign
were destroyed. Rather, the standard for judging the
Union's conduct in this case was set forth in Provin-
cial House, Inc.,2 0 wherein the Board stated that
threats of picket line violence in the future "[create
the] impression that the Union could, and would, re-
sort to whatever means-lawful or unlawful-
[which] might be required effectively to exercise its
power over employees. We do not believe that
threats of this kind of raw exercise of power are con-
sistent with the atmosphere necessary for the conduct
of a free and fair election." 21
The practical effect of the majority's condonation
of union coercion, threats, and restraint during elec-
tion campaigns is indeed unfortunate for employees
who will utilize the Board's election processes in the
future. Surely, the majority opinion will encourage
certain overzealous unions during election cam-
paigns to openly flaunt their willingness to utilize
their "raw exercise of power" to achieve their aims,
as long as they are careful not to explicitly link
0 209 NLRB 215.
'11 Id. at 215 216. I would similarly set aside an election if an employer
threatened its employees with violent repnsals if the employees failed to
cross a picket line and report to work. I am sure that my colleagues in the
majority would agree with such a position
There is also another proper approach which may be utilized in this case.
The Board has found on numerous occasions that threats of picket line
violence by a union against employees who seek to continue to work are
unfair labor practices in violation of Sec. 8(b)(1HA) of the Act. Thus, ac-
cording to Dall-7x Optical (Company. Inc., 137 NLRB 1782 (1962), conduct
which constitutes interference, restraint, and coercion and thus violates the
Act is, "a frtiior, conduct which interferes with the exercise of a free and
untrammeled choice in an election." Id. at 1786-87. Although there are
limited exceptions to Dal-Tex where the restraint and coercion is isolated in
nature, it is clear that the threats in this case were uttered to most of the
employees on several occasions. The faihure of the majority to apply this
settled priciple is puzzling
644
HICKORY SPRINGS MANUFACTURING COMPANY
threats of bodily injury to the employees' vote for
union representation.
MEMBER MURPHY, dissenting in part:
In agreement with the Regional Director, I would
direct a hearing on Objection 2.22 The statements al-
leged as objectionable herein, if made or adopted by
union agents, would warrant setting aside the elec-
tion.
It is difficult for me to understand how the majori-
ty here can direct otherwise. I have seldom seen a
case alleging more direct threats of property damage
and mayhem prior to an election that this one. More-
over, according to the Regional Director's report,
either the union representative or the union president
was present at least on two occasions when threats of
physical harm were made and allegedly did nothing
to disavow them. Instead, the union president on at
least one occasion specifically reinforced the preelec-
tion threats.
Briefly, shortly before the election was held, vari-
ous prounion employees made threats at the union
meeting. For example, one employee threatened that
if there was a strike and anyone crossed the line,
"they should be taken out and have the dog- beat
out of them.2 3
At the same meeting, another employee warned
that in the event of a strike there were a lot of union
members and "anyone pulling a load would find
themselves in a gully." Agreeing with this, a third
employee pointed out that there was a particular
stretch of road which could be used for forcing
trucks off the highway. These threats allegedly oc-
curred in the presence of the union representative
who said or did nothing to disavow them.
It is also alleged that during another union meet-
ing prior to the election the president of the Local
Union was asked pointblank what would be done in
the event of a strike. He allegedly replied that "what-
ever would be necessary on the picket line would be
done." In his presence, along the same lines, another
employee volunteered that anyone who crossed the
line "would get it." Still another employee emphasiz-
ed that "if there was any stomping [he would] he in
the middle of it."
Finally, as the Regional Director points out, dur-
ing a conversation among six or seven of the Em-
ployer's drivers at a truckstop shortly before the elec-
tion was held, the above threats were reemphasized.
Specifically, when one employee asked "what the
22 would also direct a hearing on Objection 3 in order to ascertain
whether the combined effect of the conduct alleged in Ohbjections 2 and 3
creates an atmosphere which destroyed the lahorator' conditlons for con
ducting the election herein
23 The relevant portion of the Resport on Ojhections is attached as an
Appendix.
Union would do in the event of a strike," his cowork-
er replied that "there were ways to stop a Company."
This coworker then described "how trucks could be
burned and run off the road and drivers could be
pulled off the trucks."
The majority somehow ignores all of these threats
of burning and mayhem, contending that they did
not influence the employees' choice at the polls be-
cause the threats involved strikes and strikes do not
occur, if ever, until after the union election has been
held. But these threats were not limited. To the con-
trary, they were specific and open-ended. The only
conclusion that can be fairly drawn from the Region-
al Director's report is that, if the alleged events in
fact occurred, the union officials in this case and
their adherents threatened violence and mayhem
whenever "the Union" did not approve of employee
or employer conduct-like, perhaps, voting against
the Union in a Board-conducted election.
The Regional Director, correctly relying on Provin-
cial House, Inc.. 209 NLRB 215 (1974), find t'hat
such statements, if made by union agents, would
warrant setting aside the election. Thus, the Board
there found that statements of this type constitute
. . . a clear threat of forcible union reprisals
against anyone who crossed a picket line estab-
lished by the Union, thus creating an impression
that the Union would resort to whatever
means-lawful or unlawful-might be required
effectively to exercise its power over employees.
We do not believe that threats of this kind of
raw exercise of power are consistent with the at-
mosphere necessary for the conduct of a fair
election.
The majority overrules Provincial House and relies
instead on an earlier case, The Great Atlantic and Pa-
cific Tea Company, Inc., 177 NLRB 942 (1969), where
a contrary result was reached on similar facts. In
Great Atlantic and Pacific Tea Company, the Board
found that the remarks were neither related to events
surrounding the election nor were they calculated to
coerce employees to vote for the petitioner. In my
opinion, Provincial House was correctly decided. The
difficulty with the holding in The Great Atlantic and
Pacific Teat Comnpanl is that it completely ignores the
likelihood, as noted in Provincial House. that threats
of physical assaults will have a spillover effect. Thus.
employees will assume that a union which is willing
to assault employees with respect to crossing the
picket line would also be willing to engage in such
assaults with respect to any conduct which the union
finds is contrary to its interest. including opposing it
in the election. The result is that employees will be
inhibited in expressing their actual views concerning
645
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation by the union during the organiza-
tional campaign.
It seems clear that in The Great Atlantic and Pacific
the Board panel missed the point made in Provincial
House, namely, that a threat of picket line violence in
an election campaign signified the union's willing-
ness to abuse physically employees who oppose it.
Thus, it hypothesized in The Great Atlantic and Pacif-
ic decision that it was "improbable" that the threat of
picket line violence made therein would have had the
effect of coercing the employees to vote for the union
because such a threat (characterized euphemistically
as a retort) likely referred to some future time after
the union had been designated as bargaining repre-
sentative and was engaged in a strike against the em-
ployer.
Indeed, there is nothing in this or either of the two
cited cases which would indicate that such union
misconduct would be restricted to any specific time
period or situation, or that its occurrence depended
only on the Union's prevailing in the election. Cer-
tainly, there is no basis here for inferring that a strike
would occur only if the Union won the election. No
such statement was made, and unions have been
known to strike although not the designated bargain-
ing representative. Thus, my colleagues' assumptions
that no strike was to occur prior to the election and
the further one that no strike would have taken place
unless the Union won are without evidentiary sup-
port. Furthermore, both assumptions erroneously as-
sume facts which might or might not be the case, and
both cavalierly ignore other assumptions which can
just as aptly be made from the Union's statement
that in the event of a strike there might be violence to
enforce it. For example, the Union could have meant
that it would engage in a preelection strike, if neces-
sary, to force employee support for it in the election;
or that it would strike if it lost the election in reprisal
therefor. In either of these situations, to the employ-
ees a strike would mean that if they opposed the
Union they might be assaulted. In either instance,
the threatened action would be related to the election
and would therefore have the tendency to interfere
with the exercise of free choice by the employees.
Accordingly, for the above reasons, I would re-
mand Objections 2 and 3 for hearing.
APPENDIX
OBJECTION 2
The Employer presented several employee witness-
es regarding remarks made at union meetings during
the campaign and at a gathering of employees at a
truck stop.
One employee witness testified that, at the second
union meeting, which the Union confirms occurred
on November 11, 1977, at the union hall, there was
discussion about the State right to work law. One
employee allegedly stated that if there was a strike
and anyone crossed the line, they should be taken
out and have the dog- beat out of them. Another
employee stated that, in the event of a strike, if com-
pany trucks were caught on the road there were lots
of Teamsters and anyone pulling a load would find
themselves in a gully. Another employee cited a par-
ticular stretch of road where this could be accom-
plished. The employee witness stated that Union
Representative Cecil Douthitt was present during
this conversation and did nothing to disavow the re-
marks or to put a stop to them. The employee re-
called that 12 to 14 of the employees were present.
Douthitt testified that he did attend this meeting.
He could not recall any discussion of a strike and
further stated that there were no threatening remarks
made, to his knowledge.
Another employee witness presented by the Em-
ployer testified regarding another union meeting held
during the campaign. The union official in charge of
the meeting was president of the Local Union and is
also a driver for another trucking concern. While the
date was not certain, the Union concedes that the
meeting was held within the critical period. Douthitt,
the union official who attended all other meetings,
stated that there was one meeting presided over by
the local president. The Employer's witness testified
that about 9 employees were present. During the
meeting, the witness asked what would be done in
the event of a strike and the local president replied
that whatever would be necessary on a picket line
would be done. Another employee allegedly stated
that anyone who crossed the line would get it. An-
other employee purportedly stated that if there was
any stomping done he'd be in the middle of it. The
witness says he echoed the sentiments of the last em-
ployee and added that if anyone bothered his family,
"that would be it." Finally, the witness testified that
a question was raised about the non-union firm
which leases trucks to the Employer. The witness
says the local president stated that "Ryder would be
taken care of."
A third employee witness presented by the Em-
ployer testified that on a date shortly before the elec-
tion (after the date of the election had been made
known) he and some 5 or 6 other drivers were at a
truck stop and that, during a conversation about the
Union, he asked what the Union would do in the
event of a strike. Another employee allegedly replied
that there were ways to stop the Company. He alleg-
edly continued by describing how trucks could be
burned, run off the road, and that drivers could be
646
HICKORY SPRINGS MANUFACTURING COMPANY
pulled out of the trucks. It was conceded that no
union officials were present on this occasion.
Other than the above, the only incidents relied
upon to support this objection involve two non-re-
lated occurrences.
One witness testified to an undated conversation,
on his CB radio, with an unidentified driver for the
same company. Allegedly, this witness, who was a
card signer for the Union, was called a scab by this
anonymous driver and, in turn, responded with an
obscenity. There was no further confrontation with
regard to this incident and no evidence the remark
was attributable to the Union.
A second witness testified to an incident occurring
some two to three weeks prior to the election in
which he discovered a live chicken perched upon his
car trunk when he returned from a driving run. Upon
removing the chicken, this witness observed a cut
running the entire length of the rear window of his
convertible top. There was no evidence presented to
show this incident was related in any way to the or-
ganizational activity.
Neither of these incidents provides a basis for set-
ting aside the election.
The conduct of rank and file employees, specifical-
ly oral threats in the absence of actual physical vio-
lence, in order to warrant setting aside an election
must be shown to have created a general atmosphere
of fear and coercion.2 Judged by that standard alone,
the remarks attributed to the employees at the three
meetings described herein do not warrant setting
aside the election. However, in two of the three meet-
ings discussed above, union officials were present
and made no attempt to disavow or to stop the al-
leged threatening remarks. Further, in one meeting,
the union official present allegedly participated in
the discussion which centered on coercive strike ac-
tivity.
In The Great Atlantic and Pacific Tea Company,
177 NLRB 942, the Board was concerned solely with
a union agent's remark, in response to a question
regarding strikes, to the effect that Teamsters have
been known to break arms. Reversing the Regional
Director, the Board found such a remark not to con-
stitute interference with the election.
2 Owens-Corning Fiberglas Corp.. 179 NLRB 219.
In a more recent decision, Provincial House, Inc.,
209 NLRB 215, a similar remark made by a union
agent during a union meeting shortly before the elec-
tion was found to constitute grounds for setting aside
the election.
Thus, it would appear that the precise involvement
of union agent(s) in the incidents described in this
objection are of crucial importance in resolving the
issue herein. As the Union denies the allegations
herein, I find that this objection raises material and
substantial issues best resvolved on the basis of rec-
ord testimony.
OBJECTION 3
In support of this objection, the Employer pre-
sented three employee witnesses. All three witnesses
testified to the fact that a group of 10 to 12 drivers,
all eligible voters in the election, were congregated 10
to 15 feet outside the door of the polling area when
the polls were opened. After voting, a group dis-
persed and returned after the polls had closed. In
addition, all three witnesses testified that there were
no union officials present during the polling time.
One witness testified he heard only one conversation,
or part conversation, from the group, in which one of
the drivers asked what that old S.O.B. was doing in
there (referring to the Employer's observer). Another
driver responded that he was the company man.
There was no evidence of any electioneering either
inside the polling area or in the group waiting outside
the door to vote.
A second witness testified the only statement he
heard prior to voting was, "Be sure to vote right."
After leaving the polling area, someone allegedly
asked him, "Did you vote right," to which he re-
sponded he had. The third witness testified he heard
two drivers he identified as union supporters make
the statement that if the Union wasn't voted in, ev-
erybody might as well find another job, that they
would all be fired. This statement was not directed at
any one person, but at the group as a whole. All of
the employer witnesses testified that they had not
been threatened in any way and no evidence of
union agency was proffered with regard to any of the
voters in the group.
On the basis of the testimony of the proffered wit-
nesses no evidence of electioneering has been found.
Accordingly, it is recommended that objection 3
be overruled.
647