Rjr Archer, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1985

274 N.L.R.B. 335 (N.L.R.B. 1985)

RJR ARCHER, INC
RJR Archer, Inc., Filmco Division and Freight
Drivers, Dock Workers and Helpers Local
Union No. 24 , affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Case 8-CA-
10653
25 February 1985
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 1 October 1976 Freight Drivers, Dock
Workers and Helpers Local Union No. 24, affili-
ated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America (the Union) was certified as the exclusive
representative of a certain appropriate unit of em-
ployees of the Respondent, following an election
and the resolution of the Respondent's objections
to conduct affecting the results of the election.' On
27 June 1977 the National Labor Relations Board
issued a Decision and Order2 finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act by refusing to bargain
with the certified Union and ordered the Respond-
ent to bargain collectively with the Union. The Re-
spondent refused to comply with this Order. The
Respondent contended that the Board's certifica-
tion of the Union was invalid.
The Board petitioned for enforcement of its
Order in the United States Court of Appeals for
the Sixth Circuit. On 14 March 1980 the court
denied enforcement of the Board's Order and re-
manded the case to the Board with directions to
hold an evidentiary hearing on the Respondent's al-
legations of union misconduct during the represen-
tation election.3
On 29 June 1981 the Board issued an Order re-
opening the record and remanding the proceeding
to the Regional Director for a hearing before an
administrative law judge for the purpose of taking
evidence pursuant to the court's remand. A hearing
was held 7 December 1981 in Cleveland, Ohio,
before Administrative Law Judge Robert W.
Leiner, who issued the attached decision 26 Febru-
ary 1982. The Respondent filed exceptions and a
supporting brief, and the Union filed a brief in
answer to exceptions.
i Case 8-RC-10333 ( 1976), not published in Board volumes
2 230 NLRB 499 (1977)
3 617 F 2d 161 (6th Cir 1980)
335
The Board has considered the decision and
record in light of the exceptions4 and briefs and
has decided to affirm the judge's rulings, findings,5
and conclusions only to the extent consistent with
this Decision and Order.
In its objections the Respondent alleged that the
Union interfered with the election by making
threats of physical violence and retaliation to the
employees if they did not support the Union. The
Respondent further alleged that the totality of
preelection conduct, whether or not attributable to
the Union, prevented a free and fair election. The
judge found that certain threats were made by em-
ployees who were not agents of the Union. He
found, however, that the threats were not widely
disseminated nor did any actual violence occur.
The judge concluded that an atmosphere of fear
and coercion that would prevent a fair election was
not created and recommended that these objections
be overruled. The Respondent excepts to the
judge's rulings. For the following reasons we find
merit to these exceptions.6
The judge found that during the critical period a
week or two before the election employee Gibson
approached coworker Flowers and asked Flowers
how he was going to vote in the election. When
Flowers responded that he would vote no, Gibson
told Flowers that he might burn Flowers' house
and van if he did not vote for the Union. The
judge found that Flowers told two coworkers of
this threat before the election, and evidenced his
considerable apprehension by leaving the Respond-
ent's factory during working time to check the
safety of his parked van. The judge noted that at
least some employees had knowledge of this threat
to Flowers, but concluded that because of the wit-
nesses' uncertain testimony he could not determine
just how widespread was the dissemination.
4 Along with its exceptions the Respondent filed a "Motion for Leave
to Reopen the Record and Adduce Additional Evidence " Our disposi-
tion of this case makes it unnecessary to consider additional evidence that
might be adduced at a hearing Accordingly, the motion is denied
We also deny the Respondent 's motion to dismiss which had been re-
ferred by the judge to the Board
5 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We also find without merit the Respondent's allegations that the
judge's conclusions were "predetermined " Upon full consideration of the
record, we perceive no evidence that the judge prejudged the case, made
prejudicial rulings, or demonstrated a bias against the Respondent in his
discussion or analysis of the evidence
6 In light of our decision we find it unnecessary to reach the Respond-
ent's other objections to the election and exceptions to the judge's deci-
sion
274 NLRB No. 49
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We disagree. While the testimony is somewhat
vague as to precise dates, we find that it is suffi-
ciently clear for us to conclude that the threat was
widely circulated during the preelection period.
Employee Williams testified that, before the elec-
tion, he arrived at work before his day-shift start-
ing time. Williams testified that a group of employ-
ees, including "the general people" and "a lot of
people . . . from the midnight shift," were discuss-
ing the fact that Flowers had been threatened.
Similarly, employee Grow testified that Flowers
told him privately that Gibson had threatened to
blow up Flowers' van if he did not vote for the
Union. Grow testified that he was confident that
he spoke to other employees of the threat, stating
that "virtually everybody on the [midnight] shift
was talking about it." Thus, the evidence estab-
lishes that this threat was widely disseminated.'
The judge also found that during the critical
period employee Lanthan was threatened by em-
ployee Gear. Lanthan was in conversation with
several coworkers during the noontime break, and
stated that he planned to vote against the Union.
Gear, who was accompanied by employee Huth,
responded, "You ought to think about it before you
vote . . . things can happen to a vehicle or even to
a wife and kids."
This conversation recurred daily among Gear,
Huth, and Lanthan, with Gear and Huth asking
Lanthan whether he had "made it through the
night." Compounding the severity of this express
threat of physical violence,8 Lanthan testified that
he received anonymous telephone calls at all hours
of the night, which stopped about a week after the
election. The caller hung up when Lanthan an-
swered. While not specifying the time frame,
Lanthan testified that he often told people that he
had been threatened.
During a representation election the Board must
provide "a laboratory in which an experiment can
be conducted, under conditions as nearly ideal as
possible."9 If the employees' free choice is imper-
iled by an atmosphere of fear and coercion the
Board must set aside the election. It is not material
that the apprehension is created by employees
whose conduct cannot be attributed either to the
employer or to the union.10
7 Absent proof to the contrary , Member Hunter would presume dis-
semination of the threat Metz Metallurgical Corp, 270 NLRB 889 fn 2
(1984)
8 The Board does not consider lightly such threats of bodily harm
even when addressed to one employee See Steak House Meat Co, 206
NLRB 28 (1973)
9 General Shoe Corp, 77 NLRB 124, 127 (1948)
10 We need not decide whether the employees who made the threats
are agents of the Union or whether such conduct is attributable to the
Union
We find that these threats when viewed cumula-
tively' i created an atmosphere of fear and coer-
cion in which a fair election could not be conduct-
ed. In these circumstances, especially where the
election results were so close,12 we do not view
the election as reflecting the free choice of the em-
ployees. 13
On the basis of the foregoing the Respondent's
objections are sustained. Accordingly, we revoke
our prior Decision and Order and dismiss the com-
plaint. We further vacate the certification, set aside
the election, and remand the case to the Regional
Director for the purpose of conducting a second
election.
ORDER
The National Labor Relations Board orders that
the Decision and Order in 230 NLRB 499 (1977) is
revoked and the complaint is dismissed. The Board
further orders that the certification issued to the
Union in Case 8-RC-10333 is vacated, the election
conducted 6 and 7 May 1976 is set aside, and the
case is remanded to the Regional Director to con-
duct a second election.
[Direction of Second Election omitted from pub-
lication.]
11 See Audiovox West Corp, 234 NLRB 428 (1978)
12 We note that a change of 2 votes out of 135 voters could have led
to a different result See YKK (USA) Inc, 269 NLRB 82 (1984)
13 Member Dennis concurs in the result, emphasizing the following
the misconduct must be more closely scrutinized where, as here, the elec-
tion results were extremely close, NLRB v USM Corp, 517 F 2d 971, 976
fn 5 (6th Cir 1975), Gibson' s, Gear's , and Huth 's statements were not
ambiguous , offhand comments , but rather were serious threats of reprisals
for failure to vote for the Union, Gibson's threat to Flowers was dissemi-
nated to at least three identified employees (Williams, Grow, and Nay) as
well as others on the midnight shift, Gear's and Huth's threat to Lanthan
occurred in presence of several coworkers, Gear and Huth "rejuvenated"
the threat on a daily basis up to the election by asking Lanthan whether
he had "made it through the night " See Westwood Horizons Hotel, 270
NLRB 802 ( 1984), and cases cited therein
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. On
June 27, 1977, the Board issued its Decision and Order
(230 NLRB 499) concluding, inter alia, that RJR Archer,
Inc., Filmco Division (the Company or Respondent) vio-
lated Section 8(a)(5) and (1) of the National Labor Rela-
tions Act by refusing to bargain with Freight Drivers,
Dock Workers and Helpers Local Union No. 24, affili-
ated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union) as the certified representative of the Company's
production and maintenance employees (including ship-
ping and receiving employees, plant clericals, and "chief
operators") employed at the Company's Aurora, Ohio fa-
cility The underlying certification of the Union as statu-
RJR ARCHER, INC
tory bargaining representative, upon which the Board's
Order was based, was issued on October 1, 1976, when
the Board issued its Decision and Certification of Repre-
sentative (not reported in Board volumes) That decision
and certification of the Union in the above-described unit
also concluded that timely Company objections to the
election and exceptions to the Regional Director's
Report on Objections did not raise substantial and mate-
rial issues warranting a hearing. Following a request by
the Union about November 4, 1976, that the Company
bargain collectively, the Company, on December 2,
1976, refused, and has thereafter continuously and admit-
tedly refused to recognize or bargain with the Union.
The relevant subsequent record events demonstrate
that on December 10, 1976, the Union filed a charge al-
leging violations of Section 8(a)(5) and (1) of the Act by
virtue of the Company's December 2, 1976 refusal to
bargain with it; and that on January 31, 1977, the Com-
pany filed its answer to the complaint, issued by the Re-
gional Director alleging violations of Section 8(a)(5) and
(1) of the Act by virtue of the Company's refusal to rec-
ognize and bargain, in which it admitted certain of the
allegations of the complaint, but averred that Board cer-
tification, following a defective election, was improper
(for reasons which will appear hereafter) and that it was
thus under no legal obligation to recognize and bargain
with the Union.
In the underlying Board-conducted election of May 6-
7, 1976, the tally of ballots showed that, of approximate-
ly 144 eligible unit voters, 69 voters cast ballots for the
Union and 66 cast ballots against the Union. The Compa-
ny filed timely objections to the conduct of the election
and the Regional Director investigated the objections.
The Regional Director's Report on Objections, issued
on July 1, 1976, concluded that the Company's four ob-
jections failed to raise substantial and material issues of
either fact or law and therefore were without merit, fur-
ther concluded that no hearing on these objections was
required; and recommended that the objections be over-
ruled and that the Union be certified. As above noted,
the Board agreed with the Regional Director in issuing
its October 1, 1976 Decision and Certification of Repre-
sentative.
In accordance with the Board's procedure, upon the
General Counsel's subsequent complaint alleging viola-
tions of Section 8(a)(1) and (5) and Respondent's answer
averring improper Board certification because the
Union's misconduct in the election obviated any legal ob-
ligation on its part to recognize and bargain with the
Union, the Board, on June 27, 1977, nevertheless issued
its above Decision and Order, inter alia, finding a viola-
tion of Section 8(a)(1) and (5) of the Act, and directing
the Company, on the Union's request, to bargain with
the Union as the exclusive representative of the employ-
ees in the aforesaid unit and to cease refusing to bargain
with the Union Upon the Company's refusal to comply
with the Board's Order, the Board petitioned for en-
forcement of its Order in the United States Court of Ap-
peals for the Sixth Circuit In its opinion of March 14,
1980, the court denied enforcement of the Board's Order
and remanded the case to the Board with directions to
hold an evidentiary hearing on Respondent's allegations
337
of union misconduct during the May 6-7, 1976 represen-
tation election. NLRB v. RJR Archer, Inc., 617 F 2d 161
(6th Cir 1980)
On June 29, 1981, the Board issued an Order reopen-
ing the record, wherein it remanded the proceeding to
the Regional Director to arrange for a hearing' on Re-
spondent's allegations of union misconduct affecting the
election. The Board's Order directed that the hearing be
conducted pursuant to the Board's Rules and Regulations
and thereafter that the administrative law judge prepare
and serve on the parties a decision containing findings of
fact based on the evidence received pursuant to the
remand, conclusions of law, and recommendations to the
Board.
Pursuant to that Order of the Board, a hearing, on
prior notice, was held before me in Cleveland, Ohio, on
December 7, 1981. At the hearing, the Regional Director
and the Company were represented by counsel, the
Union by its secretary-treasurer. At the conclusion of the
hearing, after the parties had the opportunity to adduce
evidence and call witnesses and examine them both on
direct and cross-examination, all parties waived final ar-
gument, and thereafter the Company and the Union (by
its attorney) submitted posttrial briefs which were duly
considered.
On the entire record in this supplemental hearing, in-
cluding the briefs, and from my observation of the wit-
nesses, I make the following
FINDINGS OF FACT
Pursuant to the court's mandate, the hearing herein
was conducted pursuant to Rule 102 69(f) of the Board's
Rules and Regulations
The Company's four objections to the election (R.D.
Exh. 3) are as follows-
1. Subsequent to the filing of the petition herein
and prior to the election on May 6, 1976, the Peti-
tioner [the Union], by and through its agents, repre-
sentatives, adherents and others, coerced and re-
strained employees and otherwise interfered with
their right to a free and fair choice by threats of
physical violence and retaliation if they did not sup-
port and vote for the Union and assure its success at
the polls
2. Subsequent to the filing of the petition herein
and prior to the date of the election, the Petitioner,
through its agents, representatives, adherents, and
others, made and issued misleading and material
misrepresentations concerning the contractual ac-
complishments of the Petitioner and the wages and
benefits to be gained through representation by the
Petitioner at a time and under conditions and cir-
cumstances which effectively denied the Employer
an opportunity to rebut such misrepresentations
3 Subsequent to the filing of the petition herein
and prior to the election, the Petitioner, by its
agents, representatives, adherents, and others,
' The Board's Order adopted the court's decision as the law of the
case
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
caused the Board's Notice of Election to be defaced
by placing an X in the Yes box appearing on the
Board's Official Sample Ballot, thereby indicating to
eligible voters that the Board favored the choice of
the Petitioner in the election held on May 6
4. By the foregoing and by other acts and con-
duct, the Petitioner , through its agents , representa-
tives, adherents , and others , interfered with, re-
strained and coerced eligible voters in the exercise
of their rights under the Act and destroyed the req-
uisite laboratory conditions necessary for the voters
to make a free , fair and reasoned choice in the elec-
tion conducted herein.
The evidence is uncontradicted that the election was
held on Thursday, May 6, 1976, between 3.30 and 4.30
p in and thereafter , on the same night , between 11:45
p.m. and 12.30 a.m. on May 7, 1976 It was stipulated by
the parties at the hearing that Kester "Hoot " Gibson and
Gary Gear were two RJR employees at the Aurora
plant, among others, who contacted Local 24 and ob-
tained from Local 24 blank authorization cards, which
they thereafter returned to the Union signed , and on the
basis of which , in part, the Union petitioned for the in-
stant election.
At the opening of the hearing, and again in the brief,
the Company moved to dismiss the underlying complaint
herein , or to set aside the election or, alternatively, to
direct a new election , on the ground that the passage of
time itself since the May 6-7, 1976 election barred any
usefulness to the continued certification or any order di-
recting the Company to bargain with the Union ; and, al-
ternatively, that the 5-1/2-year period between the elec-
tion and the instant hearing , due to Board and court
delays, prevented the Company from effectively present-
ing evidence which would show the Union 's misconduct
affecting the outcome of the election .2 At the hearing, I
denied the Company's motion on the grounds that (a) the
motion was outside the scope of the remand in that my
function was to facilitate the adducing of evidence pursu-
ant to the remand under the Board ' s Order and the
court's mandate and to thereafter draw conclusions and
make a recommendation with respect to such evidence
and conclusions ; and (b) in any event , to the extent that
any of the Company's arguments related to the unfair-
ness in Board or court rules and procedures , the Board's
application of the facts to its outstanding Rules and Reg-
ulations, or the Board 's and court 's dilatory actions pre-
venting it from adducing evidence in support of its ob-
jections, I ruled then , and continue to rule, that such ar-
guments be made to the Board and to the court of ap-
peals rather than to me I therefore respectfully refer to
the Board , in the first instance , and thereafter to the
United States Court of Appeals for the Sixth Circuit,
such of the Company's arguments asserting that the
Board 's Rules and Regulations are unfair (either per se
or as interpreted ) and the Board 's and the court 's dilato-
ry processing of this case denied Respondent an opportu-
nity to fairly adduce evidence.
Objection 13
Objection 1 asserts that the Union 's agents, representa-
tives, "adherents and others" interfered with employee
free and fair choice in the election by threats of physical
violence and retaliation if the employees did not support
and vote for the Union and assure its success at the polls.
At the hearing it appeared that in the fourth objection,
the Company was arguing that the entire course of con-
duct surrounding the election , including the actions al-
leged in all three objections , whether or not attributable
to the Union, so interfered with the "laboratory condi-
tions" insisted upon by the Board in the conduct of its
elections that such actions prevented a free, fair, and rea-
soned choice and require that the election be set aside.
A former employee of the Company, Robert C. Flow-
ers, in support of these objections , testified that in the
period prior to the election, he owned a van of which he
was particularly proud . In a period not greater than 3
weeks before the election , he had a conversation at a bar
where he was drinking with coemployee Kester "Hoot"
Gibson , ' employed on the same midnight to 8 a.m. shift
in the Aurora plant, wherein Gibson asked Flowers how
he was going to vote in the election . Flowers answered
that he was going to vote "No " (i.e., against the Union)
Gibson said, "We'll burn your house down ," and with
regard to Flowers ' van, "I might burn it if you don't go
along [with the Union] ." Other than this testimony,
Flowers' recollections were entirely vague. He said he
laughed in Gibson 's face at these threats, he could not
remember whether this was the sole occasion on which
Gibson mentioned burning the van , and he asserted that
he might have told this to employee Nay but then said
he could not recall and that he could not recall telling
this story to a company supervisor, Benjamin Middleton.
The evidence shows that nothing ever happened to the
van, nor to any other Flowers' property or the property
of any other employee, and that no physical act occurred
with regard to any employee or the Company. Where
Flowers asserted that Gibson was joking and was not se-
rious, I do not credit such testimony in view of the testi-
mony of other witnesses which demonstrated that Flow-
ers did not understand it to be a joke. The Company's
current employee, Donald R . Grow , credibly testified
that he knew both Flowers and Gibson and that Gibson
worked at Grow 's worktable . He testified that some 2
months before the election , after lunch , Flowers ap-
proached him, looking pale. Flowers told him that he
2 The Company also states that the Regional Director ' s refusal to
permit it access to 17 affidavits the Board procured in its investigation of
objections from company employees similarly impeded the Company in
its presentation of the case But see Sec 102 118 of the Board's Rules and
Regulations The Company's formal prior request to the Regional Direc-
tor for these affidavits under the Freedom of Information Act, 5 U S C §
552, was denied (R Exhs 1 -3) Cf Flagle Memorial Park, 247 NLRB
1397 (1980)
3 All testimony in this record was adduced through witnesses called by
the Company
4 Gibson accompanied union agents to the National Labor Relations
Board hearings in the underlying representation case The transcript, on
ocasion , refers to "Hoot" Gibson as "Huth" Gibson This sometimes con-
fuses the record since, independently , there is an employee mentioned in
the transcript by the name of John Huth and there is no Huth Gibson,
only Kester "Hoot" Gibson
RJR ARCHER, INC
had just been threatened with his van being blown up if
he did not vote for the Union and that the threat came
from Kester Gibson. Grow could not recall retelling this
conversation to any specific employee, although "all [the
employees] talked about it." He did not say when other
employees spoke of it 5 He also testified with regard to a
rumor in the plant that another employee (Don Wright)
had ping-pong balls placed in the gas tank of his car.
Grow recalled discussing the threat to Flowers which
another union adherent, John Huth (who was not called
to corroborate Grow's recollection), but whether this
discussion occurred before or after the election was not
shown.
Grow also testified that neither Huth nor Gibson, both
union advocates, was a union employee but that Gibson
attended union meetings and distributed union pamphlets.
With regard to Gibson 's attending union meetings, this
information was gained from Gibson's statements because
Grow did not attend any union meetings. Lastly, while I
do not credit Grow's testimony that the conversation
with Flowers occurred 2 months before the election
(dates and even sequence of events, where they take
place 6 years after the event, are particularly and notori-
ously subject to error) but more proximate to the elec-
tion, I do not find that this materially affects Grow's
credibility. I do not, however, take this position concern-
ing other testimony of company witnesses.
Similarly, company employee William D. Nay testified
that on the Monday before the Thursday, May 6, 1976
election, shortly after midnight, he had a conversation
with Flowers in which Flowers told him that employee
Gibson had threatened to blow up his van if he did not
vote for the Union. Nay testified that Flowers looked
scared and that he told Flowers that Gibson would not
know how Flowers voted in the election and therefore
Flowers had nothing to be concerned about. Flowers
told him that he was still scared and might not vote. Nay
further testified that he told employee Burl Smith and
Supervisor Benjamin Middleton of this conversation but
could not recall whether he told them of it before or
after the election. He failed to corroborate Grow's origi-
5 Grow, in response to a leading question, said that coemployee Don
Nay spoke of this threat to Flowers, but then testified he could not recall
if Nay was one of the employees who spoke of it He also testified that
he spoke to employee Huth about the incident Huth was not called to
corroborate Grow and Grow did not say when he spoke to Huth While
Grow thus contradicted himself on this point and responded affirmatively
to leading questions , I believe his testimony supports a conclusion that
some employees on his shift spoke of the incident The danger of leading
questions on material issues (i e, the date of Flowers ' telling Grow of the
Gibson threat) appears in company counsel 's asking Grow if his conver-
sation with Flowers occurred "during the week prior to the May 6, 1976
election" and Grow' s refusing the lead and placing it "probably two
months before the election " Flowers' recollection of the threat placed it
closer to the election In any event , there is no suggestion in Grow's tes-
timony that any further discussion of the Gibson threat to Flowers, by or
among other employees , including himself, took place before the election
Thus, Flowers may have told Grow before the election, but when the
other employees spoke of it is not shown Further, the affirmative evi-
dence in the record shows that whatever discussion of the threat took
place , it was not widespread on shifts other than the midnight shift on
which Grow , Flowers, and Gibson worked because Smith on the 4 p in
to midnight shift never heard employees discuss the threat , and Williams,
on the 8 a in to 4 p in shift , heard of the threat from the midnight shift
employees There is no showing that the matter was discussed on the day
shift
339
nal testimony that Grow might have told him of the
threat. Employee Burl Smith similarly testified that he
could not recall whether this conversation with Nay
concerning Flowers' van being subject to violence was
before or after the election. Whereas, as above noted,
Grow testified that almost all the employees on his shift
discussed the threat, employee Smith did not hear any
other employees mention the threat They worked on
different shifts. Smith never spoke to Flowers of this
matter
Supervisor Benjamin Middleton testified that before
the election, he saw Flowers leaving the plant. Flowers
told him he was going to the parking lot to see his van
and said that he had been threatened with the blowing
up of his van if he did not vote for the Union. Middleton
accompanied him to the parking lot where they inspect-
ed the van and found no problem Middleton recalled
that Flowers did not tell him who had threatened him
but appeared very nervous. Middleton testified that em-
ployee Don Nay spoke of the matter and that Nay ap-
peared defiant of such threats and said that he would
"like" to have them threaten him similarly. There is no
showing when Nay spoke to Supervisor Middleton. Su-
pervisor Middleton reported this threat to higher man-
agement, apparently before the election, but there is no
showing that management took the matter further.
In addition to the above "Flowers' threat," company
employee Larry Lanham testified that in a period of 1 to
3 weeks before the election, at the noontime lunchbreak,
he had a conversation with other employees in the pres-
ence of employees Gary Gear6 and John Huth. In that
conversation, in the presence of other employees on the
shift, he said that he would vote against the Union. Gary
Gear responded- "You ought to think about it before you
vote . . . things can happen to a vehicle or even to a
wife and kids." Lanham told Gear- "If anything happens
to them, you'll be the first guy I come to see." Lanham
said that he had this conversation with Gear about once
a day thereafter. He also testified that both Gear and
Huth asked him, on a daily basis, whether he had "made
it through the night," and that these questions were
posed even after the election. Lastly, Lanham testified
that he received telephone calls before the election at all
hours of the night, which telephone calls stopped about I
week after the election. He did not know who made the
calls because the caller hung up immediately upon Lan-
ham's picking up the phone
Discussion and Conclusions with Regard to
Objection 1
On the basis of the above testimony, I conclude that a
week or two before the May 6 election (i.e., during the
critical period) Flowers was asked by Gibson how he
was going to vote in the election and that Flowers told
him that he would vote "No." Gibson then told Flowers
that he might burn up Flowers' house and van if he did
not vote for the Union. I conclude, contrary to Flowers'
testimony, that he did not consider Gibson's threat to be
a joke and that Flowers was under actual apprehension
6 Gary Gear was one of two union observers at the election
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of damage to his van (which he prized) in view of the
credited testimony of Supervisor Middleton that Flowers
thereafter, during working time, sought to leave the fac-
tory in order to ascertain whether any damage had been
done to his van I also find that Flowers nevertheless
voted in the election.
I further find, on the credited testimony of Larry
Lanham, that in the period of 1 to 3 weeks before the
election, employee Gary Gear, who ultimately was one
of two union observers at the May 6-7 election, while in
the company of employee John Huth, told Lanham (who
said he would vote against the Union) that he ought to
"think about it before [he] vote[s] . . things can happen
to a vehicle or even to a wife and kids." I further find, as
Lanham testified, that he answered this statement by stat-
ing that if anything happened to him or his family, Gear
would be the first person that Lanham would hold re-
sponsible. I further find that this conversation occurred
between these persons regularly thereafter and also that
Gear and Huth, both before and after the election, asked
Lanham whether he had "made it through the night "
I also credit Grow's testimony, while not crediting his
recollection concerning the fact that it occurred 2
months before the election, that before the election,
Flowers told him that he had been threatened by Gibson
with the blowing up of his van if he did not vote for the
Union, In view of Grow's vague and tentative testimony
of mentioning this threat to coemployees, I find that he
mentioned it to John Huth but not before the election. I
find, however, on the basis of his testimony, that the
threat was known to some other employees on his shift.
How many employees knew, how large was the mid-
night shift, and how many knew of the threat before the
election are all unknown Grow's testimony is somewhat
corroborated by Nay, who, on the Monday before the
election, had a similar conversation with Flowers in
which Flowers told him that Gibson had threatened to
blow up his van. Nay mentioned this conversation to em-
ployee Burl Smith Since neither Smith nor Nay could
state that their conversation regarding the threat to
Flowers was before the election, I cannot, and do not,
find that Nay told this to Smith before the election.
Smith never did speak to Flowers concerning the threat.
Lastly, although employee Michael Williams' testimony
was not persuasive, I find that the threat to Flowers' van
was known to some employees in the plant because em-
ployee Williams, corroborating employee Grow, testified
he discussed this with Gear and Huth before the election.
I conclude that Williams told Gear and Huth that if he
had been threatened, he would have done something
about it I am unable to conclude, however, on the basis
of testimony from all the witnesses just how widely
knowledge of any threat circulated among 145 unit em-
ployees, or whether knowledge of any of the threats
reached a large number of unit employees before the
election. I also find that Lanham, Nay, Grow, and Smith
all voted in the election
Agency
The evidence shows that Gary Gear was one of two
union observers at the May 6 election; that Kester
Union Agent Grof at the National Labor Relations
Board hearing in the representation case in April 1976,
and that both Gibson and Gear, two RJR employees at
the Aurora plant, among other employees, contacted the
Union and obtained union authorization cards which
they returned signed to the Union, on the basis of which
the Union petitioned for the instant election. There is no
suggestion in this record that, as the company brief con-
sistently asserts, either Gibson or Gear, or any other em-
ployee or employees, was a member of an "in-plant orga-
nizing committee" (whether formal or informal) which
was either sponsored, condoned, tolerated, or known of
by the Union.7 Similarly, there is no suggestion on this
record that the Union knew of or tolerated, much less
condoned or accepted, any statements made to employ-
ees or anyone else by either Gibson or Gear.
The Board rule is that when an employee serves as a
union election observer, such as employee Gear herein,
this does not constitute him an agent of the union (Cam-
bridge Wire Cloth Co., supra, supplementing 236 NLRB
1326 (1978), and cases cited); nor is card solicitation
(Gear and Gibson) sufficient to show agency status
(Cambridge Wire Cloth Co., supra, and cases cited); nor
does the fact that Gibson attended a National Labor Re-
lations Board hearing with Union Agent Grof (even if he
arrived with and sat with him) confer such apparent au-
thority, without more, so as to cause Gibson or Gear to'
become union agents thereby. Cf. NLRB v. Bosart Co.,
652 F.2d 599 (6th Cir. 1980). I therefore conclude that
neither Gibson nor Gear was an agent of the Union, that
the Union neither authorized nor ratified any of their ac-
tions; and that the Union engaged in no conduct, on this
record, so as to confer apparent authority on Gear,
Huth, or Gibson for any act or conduct
Having found that the Union was not responsible for
the statements of Gear and Gibson, and there being no
assertions that any physical acts occurred, the question
presented is whether the facts as found nevertheless re-
quire that the election be set aside. The long-established
Board rule is that the standard to be applied in determin-
ing whether an election should be set aside on the basis
of conduct not attributable to one of the parties is (Price
Bros. Co., 211 NLRB 822, 823 (1974)):
. . whether the character of the conduct was so
aggravated as to create a general atmosphere of fear
and reprisal rendering a free expression of choice of
representatives impossible.
See Hamilton Label Service, 243 NLRB 598 (1979);
Zeigler Refuse Collectors, 245 NLRB 449 (1979).
Where mere employees make generalized threats with
regard to voting e g , "if you vote no for the Union, we
are going to kick your ass" or "damage your car"
(Zeigler Refuse Collectors, supra; Central Photocolor Co.,
195 NLRB 839 (1972)), where there is no evidence of
actual violence (Cambridge Wire Cloth Co, supra), the
Board concludes that such statements of individuals, not
acting on behalf of a party to the election, tend to have
less effect upon voters than they would have had if they
"Hoot" Gibson and employee David Knarr were with 7 See Cambridge Wire Cloth Co, 256 NLRB 1135 fn 18 (1981)
RJR ARCHER, INC
had been attributable to either party. Cambridge Wire
Cloth Co., supra; Mike Yorosek & Sons, 225 NLRB 148,
150 (1976).
On the other hand, here, there was a serious threat to
Flowers' property in Gibson's statement that if Flowers
did not vote for the Union Gibson might burn up Flow-
ers' prized van and house, and proof of the threat is
based on the testimony of a discharged employee (Flow-
ers) who, apparently, is not to be rewarded by this testi-
mony, though all repetitons of the threat, including his
own, are hearsay. Price Bros. Co., supra. The Board has
set aside elections based on threats by nonemployees,
Sonoco of Puerto Rico, 210 NLRB 493 (1974), cf. Ameri-
can Wholesalers, 218 NLRB 292 fn. 6 (1974) In the in-
stant case, it should be noted that of 144 eligible voters
and 135 net ballots, 69 were cast for and 66 against the
Union. The evidence shows that in a period a week or
two before the election, several employees were made
aware of the fact that Flowers was threatened notwith-
standing that only two employees testified as to the
source of the threat.
There is little or no evidence with regard to the issues
of (a) how widely circulated the repetition of the Flow-
ers' threat was, and (b) when it was circulated. The
Board views these elements as important in deciding
whether the mere employee threat was nevertheless
likely to generate an atmosphere of such fear as to make
employee expression in the election inconsistent both
with the laboratory conditions on which the Board in-
sists and the fact that the vote would not be a full and
free expression of employee sentiment . Price Bros. Co.,
supra; Cambridge Wire Cloth Co., supra The most that
can be said of Grow's testimony, however, and notwith-
standing that "all employees spoke of [the threat to
Flowers' van]" is that some employees on his shift spoke
of it. There is no evidence of when these other employees
spoke of it, i e , whether they spoke of it before or after
the election. This is consistent with the testimony of
Smith and Nay wherein Nay told Smith of the Flowers'
threat but neither Smith nor Nay would say whether
their conversation occurred before or after the election
In short , the hard evidence of record shows that
Gibson threatened Flowers 1 to 3 weeks before the elec-
tion , that Flowers told employee Grow and Supervisor
Middleton of the threat from Gibson sometime in the
period of 1 to 3 weeks before the election, that Flowers
told the same thing to William D. Nay in the same
period; and that higher management did nothing about it.
Further, although some employees may have spoken of
the threat (but not necessarily who did the threatening)
and notwithstanding that Nay told Smith of this matter,
there was no proof that the Nay-Smith conversation oc-
curred before the election or that the employees , in gen-
eral, knew of and discussed the threat before the elec-
tion . Particularly based on the testimony of Grow, who
testified that he could not recall telling a single specific
person of the threat that Flowers had relayed him not-
withstanding that "all employees" spoke of the matter,
there is no showing how many employees on his shift
knew of the threat, when these generalized conversations
took place, or whether employees on other shifts knew
of the threat and knew of it before the election.
341
The only additional evidence with regard to an em-
ployee threatening another employee (on the basis of the
employee's sentiments to vote against the Union) is the
repeated Gear threat to employee Lanham. Gear told
Lanham, in the presence of employee Huth and perhaps
employee Fred King, 1 to 3 weeks before the election,
and repeatedly thereafter, that he should "think about"
voting before he voted because "things can happen to a
vehicle or even to a wife and kids." Notwithstanding
that Lanham's answer to this threat was decisively defi-
ant, the tendency of such a threat is serious. Further,
notwithstanding that Gear also questioned Lanham re-
peatedly, in the presence of John Huth, whether he had
"made it through the night," there is no assertion that
Lanham repeated this threat from Gear to anyone else
or, in any case, that other employees were aware of it.
Thus, in addition to Flowers being threatened and re-
peating the threat to Grow and Nay during the critical
period of I to 3 weeks before the election, there is the
additional isolated threat of Gear to Lanham concerning
Lanham's wife and children.
As in Price Bros. Co., supra, the object of the threat
(Flowers) took the threat seriously: In Price Bros. Co.,
the threatened employee purchased a gun, in the instant
case, he visited the parking lot, accompanied by Supervi-
sor Middleton, to see if his van was actually damaged.
Here, we have at least three employees aware of the
single threat from "Hoot" Gibson to Flowers, there is an
additional threat to another employee, from Gear to
Lanham, and testimony regarding the circulation of the
threat to Flowers' van, or at least Flowers' van being
threatened, among some employees on the midnight to 8
a.m. shift. As above noted, with regard to those employ-
ees, it is unknown whether these employees spoke of it
before or after the election, or both, and how many em-
ployees were affected Even Grow characterized his dis-
cussion of the threat with employee Huth as "bantering "
I have reviewed the above Board cases,8 and I find
that while the type of threats which Gibson made to
8 I am also aware of the Sixth Circuit's decisions in NLRB v Mr
Porto, Inc, 590 F 2d 637, and NLRB v US M Corp, 517 F 2d 971, 975
(1975) In Mr Porto, The, supra, the Union itself was responsible for the
acts of misconduct, including threats of physical violence, and there was
a close election, as in the instant case , where a switch of only two votes
would have altered the outcome The Sixth Circuit refused to enforce the
Board's Order and remanded the case to the Board In US M Corp,
where, as here, only employee, rather than union, threats were concerned
(including a threat to burn down an employee's barn), only four votes
separated the parties and the Sixth Circuit enforced the Board's Order In
Porto there was a very small unit (nine voters and the election was won
by the union six to three), whereas in Bostik there were 119 employees in
the unit (here 145 in the unit) The court in Mr Porto distinguished Bostik
because in Bostik the court held there were merely "isolated incidents"
and "vague" and minor "damage" over a 3-month period Here, there
was no physical damage or physical acts Even in Bostik, however, the
court noted that as in Mr Porto a close election is a "factor" which de-
mands that even minor infractions be scrutinized carefully While I be-
lieve the present facts would be governed by Bostik, in any event, how-
ever, and notwithstanding any contrary view of the Sixth Circuit, I must,
with due respect to the court of appeals, be bound by the Board's view
and the Board's rule Iowa Beef Packers, 144 NLRB 615, 616 (1963) The
general Board rule appears to be that where, as here, the conduct is not
attributable to a party, then it is the character and circumstances of the
objectionable conduct rather than the closeness of the election which de-
termines whether a general atmosphere of fear and reprisal existed war-
ranting the setting aside of the election Central Photocolor Co, supra
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flowers and Gear made to Lanham would arguably be
the type of statements which might be expected to have
been made, repeated, and disseminated among the em-
ployees, perhaps carrying an impact beyond the person
to whom the threats are directed (United Broadcasting
Co., 248 NLRB 403, 404 (1980) (where the Board set
aside an election which the votes were three for the
Union and one against the Union and the Union acqui-
esced in a blackball threat to one employee)), yet here,
there was insufficient proof of (a) wide dissemination and
(b) wide dissemination before the election In addition,
the late Board authority, Cambridge Wire Cloth Co.,
supra, clearly holds and repeats the established rule that
statements of individual employees (where the Union is
not responsible), "not acting on behalf of any party to
the election, would tend to have less effect upon voters
than they would have had if they had been attributable
to either party" (see Mike Yurosek & Sons, supra, and
cases cited therein), particularly where, as here, and as in
Cambridge Wire Cloth Co., there was a total absence of
evidence of violence; the Board would find, as I do, that
there was insufficient proof that the repetition of the
Flowers threat and the Gear threat to Lanham was
widespread before the election and, as in NLRB v.
U.S.M. Corp., supra, that the threats were not sufficiently
"substantial" in nature to create a general environment
or atmosphere of fear and reprisal such as to render a
free choice of representative impossible. Central Photoco-
lor Co., supra, Price Bros. Co., supra. Therefore, in spite
of the close election and the physical nature of the two
threats here, both elements which under other circum-
stances might militate in favor of a recommendation to
set aside the election, since there is no proof of union re-
sponsibility or wide dissemination before the election, I
believe that the Board would and should rule that the
Company has not carried its heavy burden of overturn-
ing the election by showing a general atmosphere of fear
and reprisal rendering a free choice impossible. Cf.
NLRB v. Southern Metal Service, 606 F.2d 512 (5th Cir
1979), enfg. 236 NLRB 827 (1978); and particularly
NLRB v. U.S.M. Corp., supra at 974-975, and cases cited
therein ("this burden 'is not met by proof of . . . physi-
cal threats. Rather, specific evidence is required, show-
ing not only that unlawful acts occurred, but also that
they interfered with the employees' exercise of free
choice to such an extent that they materially affected the
results of the election."' NLRB v. White Knight Mfg. Co.,
474 F.2d 1064, 1067 (5th Cir. 1973)).
Objection 2
The Company's second objection is that the Union
made and issued misleading and material misrepresenta-
tions concerning the contractual accomplishments of the
Petitioner (the Union) and the wages and benefits to be
gained through representation by the Petitioner at a time
and under conditions which denied the Company an op-
portunity to rebut such misrepresentations.
At the hearing, Respondent offered in evidence (R
Exhs. 7(a) and (b)) writings containing statements of
working conditions at "Fashion 220," a neighboring em-
ployer, a unit of whose employees is represented by the
Union and is covered by a collective-bargaining agree-
ment. The first of the documents (R. Exh. 7(a)) bears the
title "Fashion 220 (compared to Filmco)"; the second (R.
Exh. 7(b)) is entitled "Teamsters at Fashion Two-
Twenty " Both documents, which were distributed, are
the same; each contains 12 items.9 The evidence of
record demonstrates that these documents were derived
from the "Fashion 220 handbook," but discloses no con-
nection between the Union and the circulation of these
pieces of paper, copies of which were circulated among
employees and placed on Respondent's bulletin board.
Rather, the evidence shows, at most, that an employee of
the Company procured the information appearing on
these documents through a relative working at the Fash-
ion 220 plant.
The Company's administrative manager, Robert B.
Harris, a supervisor at the company plants in Aurora and
Huntsville, Alabama, testified that he possessed a copy of
Fashion 220's collective-bargaining agreement with the
Union since at least April 1976.
Company Supervisor Benjamin F. Middleton testified
that he first received a copy of Respondent's Exhibit 7(a)
about a week before the election when an employee (Mike
Williams) showed him the document. Employee Williams
testified that in the period of 1 week to 3 days before the
election, he found many copies of Respondent's Exhibit
7(a) on the lunch table and also at other places around
the Aurora plant. He never saw who distributed them,
but he discussed the document with Supervisor Middle-
ton on the day that he discovered them, which would be
on the Friday or Saturday or perhaps the next Monday
preceding the Thursday election. The evidence also
showed that employees discussed the material on Re-
spondent's Exhibit 7(a) in evidence. Thus, if Supervisor
Middleton and employee Williams are credited, and I
credit them, Respondent had its Exhibit 7(a) in its posses-
R Exh 7(a) is as follows
Fashion 220 (compare to Filmco)
25,000 Dollar Major Medical
Uniforms-Paid
12t Cost of Living This April
Blue Cross Full Coverage
90 Percent-Major Medical (We have 80 percent)
5 days Funeral Leave Close Relative (3-day Other
(Grandparent, etc ))
52 Weeks S&A at $100 Per Week
(We get 39 weeks at $110)
7 Paid Sick Days
1-1/2 For Saturday (Regardless of Hours Worked)
$11 Pension Plan (We Have $9)
10 Paid Holidays
Hourly Wage is $6 23
R Exh 7(b) reads as follows
Teamsters at Fashion Two-Twcnty
Hourly Wage 6.23 Hour
$25,000 Major Medical
Uniforms Furnished
12t Cost of Living Negotiated In April
Blue Cross Hospital Full Coverage
90 Percent Coverage Major Medical
5-Day Funeral Leave Close Relatives 3 days Others
52 Weeks A&D at $100 Per Week
7 Sick Days
1-1/2 for Sat
$11 Pension
10 Holidays
RJR ARCHER, INC
sion about 6 days before the Thursday election. (Both
Middleton and Williams mention "a week").
The document which was later distributed (R Exh.
7(b)) was allegedly not seen by the Company until about
May 4, 1976.10 Supervisor Harris testified that on May 4
he got it from a shift supervisor. He did not testify of
any knowledge of the first flyer (R. Exh 7(a)), which
was clearly distributed prior to May 4.
As I understand the Company's contentions, it asserts
that the items listed in Respondent's Exhibits 7(a) and
(b), in evidence, are material misrepresentations in the
following three aspects:
1 The statement relating to the pension fails to explain
that the $11 is the amount of the weekly contribution to
the Fashion 220 pension fund, whereas the reference to
the $9 represents only the monthly pension benefit for
each year of service paid out by the Company.
2. The documents' assertion relating to wages does not
indicate that the Fashion 220, 12 cents cost-of-living in-
crease, negotiated in April, was actually included in the
stated wage rate of $6.23 per hour and not in addition
thereto.
3. The statement relating to the sick days does not in-
dicate that the seven sick days at Fashion 220 are for
proven illnesses, whereas the Company's five sick days
are for claimed illnesses whether proven or not.
Company Administrative Manager Robert B. Harris
testified that he first saw the second flyer (R. Exh. 7(b))
on the morning of May 4, 1976. This would fall on the
Tuesday before the Thursday, May 6-7 election. As
above noted, he failed to testify concerning when, if
ever, he saw the previously disseminated first flyer (R.
Exh. 7(a)).
He testified that on that May 4 morning, he went to
the airport to pick up Company President James H. Cor-
rigan, who was to twice address all three shifts on May 4
and 5 from a prepared speech. He then testified concern-
ing when he discovered the alleged material misrepresen-
tations in the second flyer (R. Exh 7(b)) and why they
were not incorporated into Company President Corri-
gan's speech- he first discovered the misrepresentations
after President Corngan's second speech on the morning
of May 5; and he discovered them after that speech
when, for the first time, he compared the flyer with the
Fashion 220 contract. He also testified that there were
many meetings on May 4 and May 5 with regard to
these speeches, but that no one suggested altering the
speeches to reflect the misrepresentations in these two
flyers because Company President Corrigan "had not
had time to check every item against it [sic] and incorpo-
rate it [sic] into the speech."
Such testimony cannot stand, and I specifically reject
it and Harris' credibility. If Harris did not discover the
misrepresentations until after the second of Company
10 I do credit such testimony I also credit Supervisor Middleton and
employee Williams that they saw Respondent Exhibits 7(a) about a week
before the election I do not credit Harris' testimony if he suggests, by
distinguishing between R Exh 7(a) and R Exh 7(b), that he was not
aware of the substance of these flyers until Tuesday, May 4, 1976, when
he first saw R Exh 7(b) I have concluded that R Exh. 7(a) came into
the Company's possession about 6 days before the election and that it had
about 5 days to act thereon
343
President Corrigan's two speeches (i.e., after the morning
speech of May 5), then how could the decision be made
not to "alter" (incorporate the misrepresented matters
into) the speech (May 4 or 5) because the Company did
not have time to check "every item." In short, based on
Harris' self-contradictory testimony, i i part of which is
that he discovered the alleged misrepresentations only
after the second speech, it is clear that the misrepresenta-
tions were discovered probably before the first speech
and certainly before the second. Moreover, since Super-
visor Middleton and employee Williams testified that
they saw the first flyer (R. Exh. 7(a)) as early as a week
before the election (and since the alleged misrepresenta-
tions on R Exhs. 7(a) and 7(b) are the same), I conclude
that the Company had the first flyer and actual knowl-
edge of the alleged misrepresentations by Friday, April
30, 1976, not less than 5 full days before the election.12
Discussion and Conclusions on Objection 2
1. There is no evidence that the Union was responsible
for promulgation or circulation of these two flyers;
rather, the evidence shows it was the work of an em-
ployee. Where the Company argues (Br. 26) that the
Union never disavowed authorship or responsibility for
these documents, that may be quite true. However, there
would appear to be no need for denial absent some initial
showing of responsibility
2. It is unnecessary to decide, as did the Regional Di-
rector, whether these are substantial and material misrep-
resentations or merely minor distortions having no real
impact on the election within the meaning of the Board's
governing rule in cases of misrepresentation Hollywood
Ceramics Co., 140 NLRB 221, 224 (1962).13 In view of
the fact that the Company had one of the documents (R.
Exh 7(a)) in its possession about a week before the elec-
tion (6 days before the election i.e., on Friday, April 30,
1976), Respondent had a clear opportunity to make an
effective reply at least by the following Monday. The
11 Harris' testimony appeared always to include "I believe" in his an-
swers This practice, however unintentional, did not support his credibil-
ity
12 The Company's brief (p 24) states that the Company learned of the
misrepresentations 2 days before the election, i e , May 4 This contra-
dicts Harris, who placed it after the second speech on May 5, i e , too
late for Company President Corrigan to speak of it No attempt was
made, in any event, to correct the misrepresentations when the Company
discovered them by distributing truthful statements or otherwise
13 In Hollywood Ceramics the Board stated at 224•
We believe that an election should be set aside only where there
has been a misrepresentation or other similar campaign trickery,
which involves a substantial departure from the truth, at a time
which prevents the other party from making an effective reply,
so that the misrepresentation, whether deliberate or not, may reason-
ably be expected to have a significant impact on the election
In passing , I observe that were it necessary to rule on the substance of
the alleged misrepresentations , I would find that the "misrepresenta-
tions," if any , were not the work of the Union and were insignificant and,
at worst, a matter of ambiguity and inartfulness rather than false and ma-
terial Tanforan Park Food Purveyors Council v. NLRB, 656 F 2d 1358 (9th
Cir 1981)
In addition, in regulating the conduct of elections, the Board has long
distinguished between the conduct of parties and the conduct of employ-
ees Boston Insulated Wire, 259 NLRB 1118 (1982) Third party conduct
is given less weight Robert's Tours, 244 NLRB , 818, 823 (1979), and
cases cited
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact that another document (R Exh 7(b)) was circulated
only 2 or 3 days before the election and at a time when
Respondent, arguendo, could not effectively reply to the
matter is irrelevant since the two documents are the
same . I have concluded that the Company knew of the
first flyer by April 30 Surely it had the opportunity to
incorporate corrective statements in Company President
Corrigan's speeches to the three shifts on May 4 and 5 It
not only failed to do so, but it failed on May 3 to 5 to
attempt to reach any large group of employees by any
means And even if Respondent had no opportunity to
address its employees in a mass speech 1 day before the
election, as it appeared to argue at the hearing, because
of the rule in Peerless Plywood Co., 107 NLRB 427, 429
(1953), it was nevertheless in no way prevented from dis-
cussing the misrepresentations even in Respondent's Ex-
hibit 7(b), which was circulating 3 days before the elec-
tion, with its employees by passing out leaflets or speak-
ing to them directly NLRB v. Silverman's Men's Wear,
456 F 2d 53 fn. 4 (3d Cir. 1981). In NLRB v. Silverman's
Men's Wear, the court held that even 36 hours is enough
time to contact employees, without regard to the advan-
tages of a speech to massed employees prohibited within
24 hours of the election under the Peerless Plywood rule.
Moreover, in Silverman's Men's Wear, supra, as the court
observed, half the employees were on layoff at the time
the employer became aware of the alleged misrepresenta-
tion, and it was held, in an admittedly smaller unit, that
there were other ways to reach employees other than by
captive-audience speeches. Here, I find that the Compa-
ny long possessed the Fashion 220 contract and had
ample time to correct any misrepresentation-about 5
days before the election 14
I conclude, therefore, and recommend same to the
Board that, as a matter of law, it find that whatever mis-
representations appear in the flyers which documents
were identical in substance, they are not documents for
which the Union is responsible and were circulated
about 6 days before the election. Five full days was an
adequate time to respond to any such misrepresentations.
The Company's Third Objection
The Company objects and asserts that the Board's
notice of election, posted on the bulletin board in its
14 In NLRB v Silverman 's Men's Wear , the court held that 36 hours
was sufficient time to contact employees , albeit it noted that they were
hard to reach because half of them were on layoff In the instant case,
the Company concedes that it had more time than the employer had in
Silverman's Men's Wear to contact its 144 employees, that it failed to do
so Having made such a concession , it advances no credible reason for its
failing to do so (Br 24)
When it learned of the distribution of the flyers, just two days before
the election, Company officials were simply too preoccupied with
other pre -election details to make a careful comparison and to effec-
tively communicate the truth to a significant members of eligible
voters (emphasis added)
What other details caused this preoccupation? Why could the Company
not reach a significant number of voters? The Employer , it seems to me,
here offers vague conclusionary statements where hard reasons are re-
quired in this disputed area As above noted , however, I have not cred-
ited the Company 's version of the facts even as to the 2 days It had the
alleged misrepresentation at least 5 full days before the May 6-7 election
and, I further conclude, knew of the assertions and had full and timely
opportunity to respond
lunchroom, was repeatedly defaced by the Union's plac-
ing an "X" to the "Yes" box appearing on the Board's
official sample ballot therein, thus unfairly suggesting to
the voters that the Board favored the Union, Allied Elec-
tric Products, 109 NLRB 1270 (1954). Company witnesses
testified that they first discovered the defacement on the
sample ballot in the posted notice of election about 6
days before the election and removed it at once. Thereaf-
ter, the Company replaced the notice of election with a
new document bearing a new sample ballot, that also
was defaced by someone writing in an "X" in the "Yes"
box. There was no dispute that employees saw the docu-
ment and it appears that it was posted at the time of the
election No testimony linked any such conduct to the
Union.
While the defacement of an election notice by an agent
of either party normally warrants setting aside the elec-
tion , Mademoiselle Shoppe, 199 NLRB 983, 984, 990
(1972), where the defacement of the sample ballot cannot
be directly attributed to the Union or any of its agents,
as in the instant case , the election cannot be set aside on
the ground of the defacement of the sample ballot. More-
over, in the instant case the evidence shows that compa-
ny supervisors and all employees had access to the bulle-
tin board in the lunchroom and it is not at all clear who
defaced the sample ballot or, more specifically, that the
Union, directly or indirectly, was responsible for these
acts. On the basis of these findings, I recommend to the
Board that this objection be overruled. See Cambridge
Wire Cloth, 256 NLRB 1135 (1981).
The Company offers no precedent for the setting aside
of an election where employees (or, as here, unknown
persons) may have placed an "X" in the "Yes" box on
the sample ballot . Rather, it suggests that language in
Building Leasing Corp., 239 NLRB 13 (1978), resolves
the question ("especially where one of the parties .. . sug-
gests to the voters that one of the choices is endorsed by the
Board") The Company argues that the Board, in using
the word "especially" implies that even where a non-
party suggestively defaces the ballot, there would be a
similar abuse of the Board's processes requiring the elec-
tion to be set aside. The language in Building Leasing
Corp. may well be too broad-and arguably broad
enough to maintain an exegetic position It is too narrow
and weak a reed on which to hang a radical expansion of
Allied Electric: to defacement by nonparties
To sum up, the evidence at the hearing established
only that there were physical threats uttered in the criti-
cal period by two employees, which threats were heard
by at least several other employees, particularly on the
night shift There is evidence that employees on at least
one other shift did not discuss the matter On the
grounds stated above, I cannot find that the apparently
limited repetition of these threats by employees to em-
ployees created such a general environment of fear and
reprisal as to render a free choice of representative im-
possible Rather, despite the closeness of the election and
the threats of particular bodily harm or property harm, I
conclude, on the basis of Board rule, that these threats
had less effect on the voters than they would have had
had they been attributable to the Union, and that their
RJR ARCHER, INC 345
existence and repetition was not so widespread as to sub-
stantially affect the outcome of the election. Moreover,
there was a serious question as to when repetition among
the unit employees occurred with regard to the threats:
whether before or after the election. In this regard, I
have determined that the Company has failed to prove
that the substantial repetition among other employees oc-
curred before the election and therefore in the critical
period.
On the basis of the foregoing findings of fact and the
entire record in the case , including the briefs , I make the
following
CONCLUSIONS OF LAW
1. The threats of physical violence and retaliation to
employees' property and persons, found herein, are not
attributable to the Union and were not so widespread as
to create a general environment of fear and reprisal
which would render the free choice of representative im-
possible.
2. The Company failed to prove that the Union was
responsible for making the sample ballot in the posted
Board notice of election with the "Yes" in the appropri-
ate box ; and, in any event , the defaced sample ballot in
the posted notice of election in the company cafeteria
was in such a place and the circumstances of the "Yes"
box marking occurred under such circumstances that, on
this record, it cannot be inferred that unit employees
were reasonably under the impression that the United
States Government or the National Labor Relations
Board endorsed the Union by the appearance of the "X"
mark in the "Yes" box, thus giving the Union a partisan
advantage.
3. Neither the promulgation, distribution, nor dissemi-
nation of written literature portraying wages and other
conditions of employment at the Company's neighbor,
"Fashion 220," is attributable to the Union; but, assum-
ing, arguendo, both that the Union is responsible there-
fore and that there are material misrepresentations ap-
pearing thereon, there was proof that the Company had
sufficient time prior to the election to make an effective
reply to any such material misrepresentations and failed
to do so.
4. None of the above objectionable acts or conduct in-
dividually, nor any of the above conduct taken collec-
tively, demonstrates that the Union engaged in such mis-
conduct or that the conduct of employees or other per-
sons created a general atmosphere of fear and reprisal so
as to render a free choice of representative impossible.
[Recommendation omitted from publication.]