Mastec/DirecTV

National Labor Relations Board - Board Decisions

Mar 7, 2011

356 N.L.R.B. 809 (N.L.R.B. 2011)

MASTEC DIRECT TV 809
Mastec North America, Inc., d/b/a Mastec Direct TV
and Communications Workers of America, Lo-
cal 3871. Case 10–RC–15707
March 11, 2011
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held August 22, 2008, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement.
The revised tally of ballots shows 14 for and 12 against
the Petitioner, with no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has decided to adopt the hearing of-
ficer’s findings and recommendations as further ex-
plained below, and finds that a certification of repre-
sentative should be issued.1
I. OBJECTION 4: CONDUCT OF ALLEGED UNION AGENTS
We agree with the hearing officer’s recommendation
to overrule the Employer’s Objection 4, which alleges
that agents of the Union threatened and intimidated eligi-
ble voters during the campaign. Based on testimony re-
garding their membership in an in-plant “organizing
committee,” the Employer argues that employees Antho-
ny Hodges and Scott Winter were union agents and that
their conduct is therefore attributable to the Union. We
find, in agreement with the hearing officer, that the evi-
dence fails to establish agency.
At the hearing, union organizer Eddie Hicks testified
about a document, not offered into evidence, that named
Hodges and Winter as two of the four members of an
“organizing committee.”2 Hicks identified the document
as the union secretary’s notes from a meeting Hicks did
not attend. Regarding the role of the four individuals,
Hicks testified that it was not a formal committee. Ra-
ther, he testified as follows: “What that’s for, if we had
1 For the reasons stated in the hearing officer’s report, we adopt her
recommendations to overrule Objections 1, 2, 3, and 6.
The Employer has excepted to some of the hearing officer’s credibil-
ity findings. The Board’s established policy is not to overrule a hearing
officer’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Stretch-Tex Co.,
118 NLRB 1359, 1361 (1957). We find no basis for reversing the
findings.
2 According to the Employer’s counsel, Matt Abel and Lou Mays
were the other two employees identified on the document as members
of the organizing committee. Neither Abel nor Mays was alleged to
have committed any objectionable conduct.
to notify somebody, that was the four people we were
going to get in touch with.” He further stated: “If any-
body had a question, I would answer back to these four
people, not everybody in that group. I couldn’t answer to
everybody so these four people would get—the question
would come to them, they would bring it to me, through
my secretary, and I would put the information back to
them.” The four employees received no special training
and attended no meetings other than those open to all
employees.
The Employer argues that Hicks’ testimony establishes
that the four individuals were members of an organizing
committee and that the organizing committee had both
actual and apparent authority to speak for the Union. We
disagree. “[E]mployee members of an in-plant organiz-
ing committee are not, simply by virtue of such member-
ship, agents of the union.” Cornell Forge Co., 339
NLRB 733, 733 (2003); accord: Advance Products
Corp., 304 NLRB 436, 436 (1991). Moreover, the Board
“will not lightly find an employee ‘in-plant organizer’ to
be a general agent of the union.” S. Lichtenberg & Co.,
296 NLRB 1302, 1314 (1989). The burden of proving
agency is on the party asserting it. Cornell Forge Co.,
supra at 733. The Employer has failed to meet that bur-
den here in relation to either Hodges or Winter.3
First, the evidence fails to show that Hodges and Win-
ter had actual authority to speak for the Union. Although
Hicks testified that he would relay messages to the unit
through the four employees, that establishes actual au-
thority only to relay those specific messages, not to speak
for the Union generally. See United Builders Supply Co.,
287 NLRB 1364, 1365 (1988) (employee had limited
authority to collect cards and inform employees of meet-
ings, but was not a general agent). There is no evidence
that Hicks authorized the employees to make the alleged
threats or was aware that they had done so.
Second, the evidence does not show apparent authori-
ty. Apparent authority “results from a manifestation by
the principal to a third party that creates a reasonable
basis for the latter to believe the principal has authorized
the alleged agent to perform the acts in question.” Cor-
ner Furniture Discount Center, Inc., 339 NLRB 1122,
1122 (2003). “Either the principal must intend to cause
the third person to believe the agent is authorized to act
3 The Employer argues that another employee, Chris Verbal, was al-
so a union agent because he testified that he belonged to the organizing
committee. Verbal, however, was not identified by Hicks as one of the
committee’s four members. Furthermore, evidence of Verbal’s organ-
izing activities is limited to Hicks’ testimony that Verbal “talked to us
about a meeting and we set the meeting up. He brought everybody.”
That evidence is insufficient to establish agency under the principles
discussed below.
356 NLRB No. 110

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 810
for him, or the principal should realize that his conduct is
likely to create such a belief.” Id. Here, we find no such
manifestation by Hicks to the unit employees.
As stated above, Hicks testified that he “would answer
back” to one of the four employees “if anybody had a
question.” The record, however, does not disclose how
often that actually occurred or what type of information,
other than meeting times, was communicated through the
four employees. Evidence of the four employees’ specif-
ic activities is limited to general testimony from other
witnesses that employee Hodges attended meetings,
made people aware of the election date, and made some
phone calls to employees. There is no evidence specifi-
cally addressing Winter’s campaign activities.
There is also no evidence that the Union or the four
employees ever told any employee that any of the four
employees were acting as the Union’s representatives,
were members of any type of organizing committee, or
were in any way associated with the Union beyond being
union supporters. Furthermore, the evidence does not
establish that the Union’s admitted agents lacked a sub-
stantial role in the campaign—an important factor in ana-
lyzing the apparent authority of in-plant organizing
committee members.4 Hicks did not attend the first two
campaign meetings, but representatives of the national
union with which the petitioning Union was affiliated
did. Hicks apparently attended later campaign meetings,
because he testified: “I didn’t even take notes on the last
two or three meetings. I’d just sit there and I’d talk with
the men.” Hicks also testified that the Union’s secretary
communicated with employees on their cell phones.
Thus, it would have been plain to employees that the
Union had its own spokespersons separate and apart from
the four employees. See Corner Furniture, supra at
1123; Advance Products Corp., supra at 436; United
Builders Supply, supra at 1365.5 For all of the foregoing
reasons, we overrule the Employer’s Objection 4.
4 See, e.g., Corner Furniture, supra at 1123; Cornell Forge, supra at
733; S. Lichtenberg & Co., supra at 1302 fn. 4.
5 The cases in which the Board has found employees to be union
agents are distinguishable. In Bristol Textile Co., 277 NLRB 1637
(1986), the Board found that, aside from a few meetings, the employee
at issue was the union’s only link to employees and had been identified
by the union’s vice president as the “spokesman” for employees. At
the vice president’s request, the employee made weekly reports to him.
The employee testified that employees came to him to find out “what
. . . was going on” and that employees recognized that he “represented
the [u]nion” at the plant. Id. at 1637. Here, there is no evidence that
the employees perceived the four employees as the Union’s representa-
tives or relied on them to find out what was going on, and those em-
ployees were not the Union’s “only link” to the unit. In Bio-Medical
Applications of Puerto Rico, 269 NLRB 827, 827–828 (1984), the
employees introduced themselves as representatives of the union, spoke
at meetings, made special appearances with union officials at campaign
II. OBJECTION 5: THIRD-PARTY CONDUCT
We also agree with the hearing officer’s recommenda-
tion to overrule Objection 5, which alleges that the con-
duct of certain prounion employees requires that the elec-
tion be set aside, even if the employees were not acting
as union agents. Specifically, the objections cite a state-
ment by prounion employee Anthony Hodges to employ-
ee Matthew Abel that Hodges could “whip [employee
Dennis Sheil’s] ass” or sabotage his work;6 an anony-
mous telephone threat to employee Lou Mays that the
caller would “get even” with him if he “backstab[bed]
us”; and statements by prounion employee Chris Verbal
to a group of three or four employees that Verbal would
“bitch slap” two other employees (who were not present
at the time) or “whip their f—in’ ass” if they “cost us the
election,” and that he would “whip [supervisor] Eddie’s
ass” if the Union lost. There is no evidence that any of
the above statements were further disseminated.
A. The Third-Party Conduct Standard
It is settled that the Board will not set aside an election
based on third-party threats unless the objecting party
proves that the conduct was “so aggravated as to create a
general atmosphere of fear and reprisal rendering a free
election impossible.” Westwood Horizons Hotel, 270
NLRB 802, 803 (1984); see also Lamar Advertising of
Janesville, 340 NLRB 979, 980 (2003); Cal-West Peri-
odicals, 330 NLRB 599, 600 (2000). In assessing the
seriousness of an alleged threat, the Board considers the
following factors: (1) the nature of the threat itself; (2)
whether it encompassed the entire unit; (3) the extent of
dissemination; (4) whether the person making the threat
was capable of carrying it out, and whether it is likely
that employees acted in fear of that capability; and (5)
whether the threat was made or revived at or near the
time of the election. Westwood, supra at 803. For the
reasons stated by the hearing officer, the Employer failed
to satisfy the Westwood standard here.
The Employer concedes that proof of a general atmos-
phere of fear and reprisal is required in order to overturn
the election. Nevertheless, our dissenting colleague con-
tends that that standard should be modified to lower the
burden imposed on a party seeking to overturn the results
of an election based on third-party conduct.7 For the
functions, and were taken by the union to campaign at a facility other
than where they worked. None of those facts is present here.
6 Sheil did not support the Union.
7 The Board has consistently held that the third-party standard ap-
plies even where, as here, there was a narrow electoral margin. Lamar,
supra at 980; Cal-West, supra at 600. Our colleague cites Steak House
Meat Co, 206 NLRB 28, 29 (1973), for the proposition that third-party
threats directed at only one employee have required setting an election
aside in certain circumstances. We find the serious physical threats in

MASTEC DIRECT TV 811
reasons stated below, we decline to follow our col-
league’s suggestion that we recast long-settled law.
To begin, we agree with our colleague that it is appro-
priate to apply the five-factor Westwood test in assessing
the seriousness of alleged threats, and we consider those
factors below. The fundamental question that considera-
tion of the five factors is intended to illuminate, however,
is whether the conduct created a general atmosphere of
fear and reprisal rendering a free election impossible.
Westwood, 270 NLRB at 803. That standard is grounded
on principles of common sense, fairness, and efficiency
and directly advances the goals of the Act. The courts
have repeatedly endorsed it.8
We share the goal that animates the dissent: to insure
that the election’s results reflect the true and uncoerced
choice of a majority of those voting. Since the Act’s
adoption, however, the Board has consistently concluded
that that statutory goal is better served by requiring a
more compelling showing to set aside an election when
the source of the alleged coercion is the conduct of third
parties rather than the conduct of the employer or union.
For the reasons we now explain, we continue to believe
our longstanding jurisprudence strikes the best balance
between the competing objectives of preventing improp-
er influence and respecting election results. The dis-
sent’s position, in our view, tips that balance too far in
one direction by permitting a few employees (or even
outside third parties), through the use of rough language,
through overexuberance (which is most likely in a close
election), or even through a deliberate effort to sabotage
the election process, to frustrate what may have been the
uncoerced choice of the majority.
First, we emphasize the extraordinary potential for dis-
ruption of the election process and frustration of employ-
ee choice that would result if third-party conduct were
not subject to a heightened standard. “[W]ere the Board
to give the same weight to conduct by third persons as to
conduct attributable to the parties, the possibility of ob-
taining quick and conclusive election results would be
Steak House—in which two male employees repeatedly threatened to
kill a 16-year-old coworker, and one such threat was made while the
speaker was holding a knife—easily distinguishable from the conduct
here.
We also observe that the facts of Westwood itself, in which the
Board ultimately set aside the election, are also far more extreme than
those presented here. The third-party conduct at issue in Westwood
included an employee’s use of actual physical force to bring another
employee to the voting line, conduct that was witnessed by 15 other
employees.
8 See, e.g., Precision Indoor Comfort, Inc. v. NLRB, 456 F.3d 636,
639 (6th Cir. 2006); Clothing & Textile Workers v. NLRB, 736 F.2d
1559, 1568 (D.C. Cir. 1984); Tuf-Lex Glass v. NLRB, 715 F.2d 291,
296 (7th Cir. 1983); Beaird-Poulan Division v. NLRB, 649 F.2d 589,
594 (9th Cir. 1981).
substantially diminished.” Orleans Mfg. Co., 120 NLRB
630, 633–634 (1958); accord: NLRB v. Griffith Oldsmo-
bile, 455 F.2d 867, 870 (8th Cir. 1972); Owens-Corning
Fiberglass Corp., 179 NLRB 219, 223 (1969). As the
Board explained in Orleans:

The employer and the union are deterred from election
misconduct by the unfair labor practice provisions of
the Act and by the trouble and expense which repeated
elections impose upon them. The absence of similar
deterrents against third persons who wish to forestall a
conclusive election may make them more prone to en-
gage in conduct calculated to prevent such a result.

120 NLRB at 633–634. This disruptive potential would be
even greater if anonymous threats, such as the telephone call
to employee Mays, were given significant weight. As stated
by the District of Columbia Circuit, a union “may well have
had no way to prevent such incidents from occurring; a re-
run election would merely risk futility, because such inci-
dents could easily recur despite the best efforts of the union
and its supporters.” Clothing & Textile Workers v. NLRB,
736 F.2d at 1568. The prospect of a rerun election might
even encourage parties or individuals to manufacture anon-
ymous threats and then attempt to use them to set aside the
election. Id.
Second, because unions and employers cannot control
nonagents, “there are equities that militate against taking
away an election victory because of conduct by a no-
nagent.” Cal-West, supra at 600; accord: Lamar, supra at
980. Simply put, it is unfair to saddle parties with the
consequences of conduct over which they have no con-
trol. As the court stated in NLRB v. Staub Cleaners, Inc.,
418 F.2d 1086, 1088 (2d Cir. 1969): “[W]here one of the
parties is directly at fault, the most effective deterrent to
future misconduct is to deny that party what it sought to
gain improperly. But, when . . . third parties are respon-
sible for the improper comments, they have little concern
with the expense and annoyance incurred by repeating
the election, and the NLRB order in such a case carries
with it no deterrent effect.”
Third, the Board and the courts recognize that conduct
by third parties is less likely to affect the outcome of the
election than employer or union conduct. Lamar, supra
at 980; Cal-West, supra at 600; NLRB v. Eskimo Radiator
Mfg. Co., 688 F.2d 1315, 1319 (9th Cir. 1982). “Em-
ployees reasonably have a greater concern about threats
emanating from the union that may become their exclu-
sive representative than they would have from threats
uttered by a single nonagent individual.” Cal-West, su-
pra at 600 (overruling objection based on employees’
statements that another employee should “wait and see”
what happened to him if he did not vote yes and that they

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 812
would “beat him up” if he crossed a picket line); Orleans
Mfg. Co., 120 NLRB 630, 633 (1958) (“[T]he conduct of
third persons tends to have less effect upon the voters
than similar conduct attributable to the employer who
has, or the union which seeks, control over the employ-
ees’ working conditions.”). Employees will ordinarily
reasonably discount the bravado of coworkers even
when, as the dissent points out, the individual employees
theoretically have the capacity to carry out the threat.
See, e.g., NLRB v. Bostik Division, 517 F.2d 971, 975
(6th Cir. 1975); Lamar, supra at 981.
Our colleague contends that an employee has the same
ability as an employer or union to effectuate a physical
threat. Indeed, he would presume “that third parties
making physical threats are capable of following through
on them.” As explained above, however, employee per-
ception of the relative capability of a third party to effec-
tuate a threat is only one of the reasons for the stricter
third-party standard. The third-party conduct standard
has routinely been applied to cases involving threats of
physical harm or other repercussions that could, in theo-
ry, be carried out by an employee.9
Our colleague also condemns the Board’s application
of Westwood as “reflexively dismissing almost any threat
uttered by a pro-union employee as mere bravado, a col-
loquialism, or typical of language used in the work-
place.” His concerns are misplaced for at least three rea-
sons. First, we reject any implication that the Westwood
standard governs only prounion conduct. The standard
applies to all third-party threats, whether the individuals
making them are prounion or antiunion. Second, our
colleague denounces the Westwood “atmosphere of fear
and reprisal” standard, yet he offers no reliable means of
distinguishing bravado from objectionable threats. In the
present case, as explained below, we rely on record evi-
dence that similar statements were common in this work-
place and among these employees. Third, and more gen-
erally, in declining to find that all language suggesting a
physical threat must be deemed to have serious intent, we
draw on our experience enforcing the Act. Loose talk is
common, but acts of violence or other forms of retalia-
tion perpetrated by employees rarely occur. Workplace
violence may be on the rise, as our colleague asserts, but
we see no evidence that talk of the kind involved here is
9 See Lamar, supra at 980 (threat to “kick ass”); Accubuilt, Inc., 340
NLRB 1337, 1338 (2003) (threat to damage employee’s car or to “get
him back” if he voted no); Duralam, Inc., 284 NLRB 1419 (1987)
(threat that an employee would be “dead meat” if the union lost by one
vote and that an employee’s bones would be broken if he crossed a
picket line).
leading to action prior to or after union representation
elections.10
In short, in our view, requiring a general atmosphere of
fear and reprisal in order to set aside an election based on
third-party conduct appropriately balances the need to
deter coercive conduct and preserve free choice against
the interest in resolving representation issues promptly
and with due regard for the expressed will of the majori-
ty. We therefore decline to abandon or recast the
Board’s longstanding test.
B. Application of the Standard
Applying the Westwood standard here, we find that the
Employer has failed to show that the employees’ conduct
created a general atmosphere of fear and reprisal render-
ing a free election impossible. With regard to the physi-
cal threats in particular, the Westwood factors weigh
against finding them sufficiently serious to be objection-
able. The threats did not encompass the entire unit, nor
were they disseminated beyond the employees present.
In the context of this employer’s workplace, the threats
were comparable to everyday back and forth among em-
ployees and would not tend to suppress employee free
choice. Lamar, supra at 981.
The record contains no evidence that Hodges and Ver-
bal, the employees making the alleged threats, were ca-
pable of carrying them out. Nor is there evidence that
Hodges or Verbal had a history of fighting or other vio-
lent behavior. Furthermore, it does not appear from the
record evidence that the alleged threats—to “bitch slap”
and “whip [another employee’s] ass”—would have been
taken seriously. Employee Matthew Abel, who heard
Verbal’s statements, described them as “just, you know,
blowin’ off steam,” and testified that “a lot of technicians
have probably said that once or twice, maybe not in re-
gards to the Union.” He further testified that he had
probably said that he would “whip somebody’s ass . . .
more than once.” Abel’s testimony in this regard is con-
sistent with the Board's general recognition that the threat
to “‘kick [someone's] ass’ . . . standing alone does not
convey a threat of actual physical harm.” Leasco, Inc.,
289 NLRB 549, 549 fn. 1 (1988). Because the language
alleged as threatening here was not uncommon in the
Employer’s workplace and was unlikely to have led other
10 Our colleague draws an analogy to picket-line misconduct cases,
in which physical threats may be deemed unprotected even if they are
not accompanied by physical action. As our colleague concedes, the
analogy is flawed. In picket-line misconduct cases, only the individual
committing the misconduct loses the protection of the Act. See, e.g.,
Clear Pine Moldings, 268 NLRB 1044, 1045–1046 (1984). Here, the
Employer seeks to overturn the expressed will of the majority of em-
ployees based on the alleged threats of a few.

MASTEC DIRECT TV 813
employees to fear actual physical harm, it is unlikely that
it would have affected the outcome of the election.11
The other evidence on which our colleague relies con-
sists of a statement by employee Anthony Hodges, made
about a week before the election, that he could sabotage
employee Dennis Sheil’s work, and an anonymous tele-
phone threat received by employee Lou Mays 2 nights
before the election, that some unknown persons would
“get even” with Mays if he “backstab[bed]” them. Alt-
hough both threats were close in time to the election, and
Hodges (who had experience in quality control) may
have had the ability to carry out the threat of work sabo-
tage, the other Westwood factors weigh against sustain-
ing the objection. Neither threat encompassed the entire
unit. The threat of sabotage was not made to Sheil, but
to Abel, who did not repeat it to Sheil or to anyone else.
The telephone threat was anonymous and vague and was
not disseminated to anyone.12 As explained above, we
agree with the District of Columbia Circuit that ordering
a rerun election based on anonymous incidents could be
both futile and “devastatingly unfair” to the majority.
Textile Workers, supra, 736 F.2d at 1568.
We do not condone the sorts of statements made by the
employees here. Nevertheless, the burden of proof on a
party seeking to have a Board-supervised, secret-ballot
election set aside is a heavy one. Kux Mfg. Co. v. NLRB,
890 F.2d 804, 806 (6th Cir. 1989) (citing Harlan #4 Coal
Co. v. NLRB, 490 F.2d 117, 120 (6th Cir. 1974), cert.
denied 416 U.S. 986 (1974)). As explained above, the
Employer has failed to satisfy the standard for overturn-
ing an election based on third-party conduct, and, contra-
ry to our colleague, we do not believe it would further
the purposes of the Act to abandon that well-established,
judicially-approved standard. Accordingly, we adopt the
hearing officer’s recommendation to overrule Objection
5.
11 See Bostik Division, supra, 517 F.2d at 973 (holding that statement
that an antiunion employee would “get [his] ass kicked” was “not the
type that would be expected to have a coercive impact,” because
“[s]uch irresponsible threats are almost inevitable in the course of a
heated election campaign and most employees doubtless expect such
exchanges”); cf. Ontario Knife Co. v. NLRB, 637 F.2d 840, 846 (2d Cir.
1980) (Friendly, J.) (“[T]he Board and the courts have recognized that
the speech of the workplace is not that of the parlor”).
12 See Accubuilt, Inc., supra (finding that coworkers’ threat to “get
[an employee] back” for voting no was not objectionable); Nabisco,
Inc. v. NLRB, 738 F.2d 955, 957 (8th Cir. 1984) (finding that two
anonymous phone calls and rocks hurled at an employee’s home, af-
fecting a determinative number of voters, did not “add up to a pattern of
improper conduct requiring an evidentiary hearing”; “A certain meas-
ure of bad feeling and even hostile behavior is probably inevitable in
any hotly contested election”).
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Communication Workers of America, Local
3871, and that it is the exclusive collective-bargaining
representative of the employees in the following appro-
priate unit:

All full-time and regular part-time technicians, lead
technicians and apprentice technicians employed by the
Employer at its Kingsport, Tennessee facility, but ex-
cluding all other employees, technical employees, tem-
porary employees, confidential employees, professional
employees, guards and supervisors as defined in the
Act.

MEMBER HAYES, dissenting.
I would sustain the Employer’s Objection 5 and set
aside the election based on third-party threats made dur-
ing the critical preelection period. I readily accept the
proposition that the Board must apply a more stringent
standard for setting aside an election based on the con-
duct of persons who are not subject to an employer or
union’s direct control. Notwithstanding this necessary
distinction between party and nonparty conduct, there are
few phrases in the Board’s lexicon that are more mis-
leading than the statement in Westwood Horizons Hotel,
270 NLRB 802, 803 (1984), that the test for objections to
third party threats in an election campaign is “whether
the misconduct was so aggravated as to create a general
atmosphere of fear and reprisal rendering a free election
impossible.” The phrase, or at least the word “general,”
should be abandoned. It suggests a requirement of wide-
spread and aggravated misconduct, and indeed it was
born in cases concerning such conditions,1 but the scope
of objectionable threats is not so limited. Indeed, third
party threats directed at only one employee have required
setting aside an election in certain circumstances.2
The real test of the objectionable nature of third-party
threats is the multifactor standard set forth in Westwood
Horizons Hotel:

[W]hether a threat is serious and likely to intimidate
prospective voters to cast their ballots in a particular
manner depends on the threat's character and circum-
stances and not merely on the number of employees
threatened. In determining the seriousness of a threat,
the Board evaluates not only the nature of the threat it-
self, but also whether the threat encompassed the entire
bargaining unit; whether reports of the threat were dis-
1 See Diamond State Poultry Co., 107 NLRB 3, 6 (1953).
2 See Steak House Meat Co., 206 NLRB 28, 29 (1973), cited with
approval in Westwood Horizons, 270 NLRB at 803 fn. 8.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 814
seminated widely within the unit; whether the person
making the threat was capable of carrying it out, and
whether it is likely that the employees acted in fear of
his capability of carrying out the threat; and whether
the threat was “rejuvenated” at or near the time of the
election.

Unlike my colleagues, I find that the election here
must be set aside under this third party test.3
The relevant facts are undisputed. One to two weeks
before the election, eligible voter Matt Abel heard pro-
union employee Chris Verbal tell a group of three or four
unit employees that he would “bitch slap” someone or
“whip their f—in’ ass” if they “cost us the election.”
Abel testified that Verbal was referring to employees
Dennis Sheil and Shawn Whippo. Then, about a week
before the election, prounion employee Anthony Hodges
told Abel that he heard Sheil and Abel had changed their
minds about supporting the Union. Hodges then told
Abel that Hodges “could . . . whip [Sheil’s] ass” and
“find out jobs that [Sheil] had done [and] f— them up to
where they wouldn’t pass the [quality control test].”4
Two days before the election, employee Louis Mays
told Hodges and employee Mark Hopkins that he thought
the election should be postponed for 6 months to give the
Employer a chance to address employees’ concerns.
Subsequently, employee Scott Winter called Mays a
“traitor,” “backstabber,” and a “f—ing snitch.” Later
that night, Mays received an anonymous phone call at his
house. Repeating Winter’s “backstabber” accusation
from earlier that day, the caller told Mays “don’t be a f—
ing backstabber, if you backstab us, we will f—ing . . .
get even with you.”
There is no indication that reports of the threats by
Verbal and Hodges, Winter’s diatribe, or the subsequent
anonymous phone threat to Mays5 were disseminated to
3 As stated above, I would abandon or revise the rote summary
statement of the Westwood test, but not the multifactor test itself, which
does not require that third party physical threats be pervasive in order to
be objectionable. Although the third-party conduct at issue here is
prounion, the test is, of course, applicable to antiunion conduct as well.
I join my colleagues in adopting the hearing officer’s recommenda-
tion to overrule the Employer’s Objections 1, 2, and 3. Inasmuch as I
would find the Employer’s Objection 5 sufficient to warrant setting
aside the election, I find it unnecessary to pass on the Employer’s Ob-
jections 4 and 6.
4 Hodges had experience in quality control and likely would have
been viewed as capable of carrying out such a threat.
5 My colleagues place particular emphasis on the unreasonableness
of setting aside an election based on anonymous threats. I do not find
that the anonymous call to Mays, standing alone, would be objectiona-
ble under the Westwood test. It does, however, warrant consideration in
conjunction with the proven threats by identified prounion employees,
including Winters’ tirade against Mays earlier that same day using
language very similar to that used by the anonymous phone caller.
employees other than those who first heard them. Still,
at least 5 to 6 employees were exposed to threats of
physical reprisal for opposing the Petitioner, repeated a
final time only 2 days before an election which the Peti-
tioner won by a slim 14 to 12 vote margin, meaning a
change in even one vote could have resulted in a differ-
ent outcome (in a tie vote, the petitioner loses).6
One of the principal reasons for finding many third-
party threats unobjectionable is that the protagonists are
not in a position to make good on the threat. That ra-
tionale is applicable to many types of threats to affect an
employee’s job or working conditions, but it hardly holds
true for threats of a physical nature. Unless the Board is
going to impose on an objecting party the burden to
prove that an employee making a threat has greater pugi-
listic skills or physical prowess than the threatened em-
ployee, and it has not heretofore imposed such a burden,
then it seems an acceptable general proposition that third
parties making physical threats are capable of following
through on them.
There remains the question whether the threats at issue
may be objectively viewed as uttered with serious intent.
I would so find. In this respect, the majority’s contrary
view is representative of an analytical approach reflex-
ively dismissing almost any threat uttered by an employ-
ee as mere bravado, a colloquialism, or typical of lan-
guage used in the workplace. This approach is unfortu-
nately reminiscent of the Board’s quondam attitude to-
wards physical threats by strikers and picketers, holding
that such misconduct did not deprive them of statutory
protection unless accompanied by physical actions. That
policy met its deserved demise7 after the Supreme Court
granted review of a case in which the Board originally
held that verbal threats by drunken strikers to a non-
striker at his home and in the presence of his pregnant
wife and young daughter did not remove the strikers’
statutory protection.8
Clearly, the issue of whether to set aside an election
based on third party threats involves consideration of
some factors that are not at issue in striker misconduct
cases. However, particularly at a time when workplace
6 The closeness of the election results is a consideration, albeit not
determinative, in analyzing whether third party threats are objectiona-
ble. See Robert Orr-Sysco Food Services, 338 NLRB 614, 615 (2002)
(“The Board has set aside elections where, as here, threats have been
made or disseminated to voters whose ballots might have been determi-
native.”), and cases cited there. In this case, threats were made to a
determinative number of voters.
7 See Clear Pine Moldings, Inc., 268 NLRB 1044 (1984).
8 Georgia Kraft Co., 258 NLRB 908, 912–913 (1981), enfd. 696
F.2d 931 (11th Cir. 1983), cert. granted 464 U.S. 981 (1983), judgment
vacated in part 466 U.S. 901 (1984), reversed in relevant part on re-
mand 275 NLRB 63 (1985).

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violence is on the rise nationally and employer efforts to
restrain it trend towards zero tolerance, there should be a
common concern as to whether the Board’s assessment
of preelection physical threats in the workplace furthers
employee free choice and labor relations stability. In my
view, the multifactor Westwood Horizons test for third
party conduct, if correctly applied, requires finding that
the objective collective impact of the threats in this case
was serious and likely to intimidate prospective voters to
cast their ballots in a particular manner.9 I would there-
fore set aside the election results and direct a new elec-
tion.
9 My colleagues mischaracterize my position as conflating the party
and third-party standards with respect to physical threats. I agree that a
higher standard must be met before setting aside an election based on
third-party conduct, but I would find that standard was met here.