Robert Orr-Sysco Food Services, LLC

National Labor Relations Board - Board Decisions

Nov 22, 2002

338 N.L.R.B. 614 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614
Robert Orr–Sysco Food Services, LLC and Teamsters
Local No. 480, a/w International Brotherhood of
Teamsters, Petitioner. Case 26–RC–8160
November 22, 2002
DECISION AND DIRECTION OF THIRD ELECTION
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
The National Labor Relations Board has considered
objections to an election held September 6, 2001, and the
hearing officer’s report (pertinent portions of which are
attached as an appendix) recommending disposition of
them. The election was conducted pursuant to a Deci-
sion and Direction of Second Election issued by the
Board on August 7, 2001.1 The tally of ballots shows 84
for and 80 against the Petitioner, with 3 challenged bal-
lots, an insufficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has decided to adopt the hearing
officer’s findings and recommendations2 only to the ex-
tent consistent with this Decision and Direction.
In Objection 3, the Employer alleged that employee
supporters of Teamsters Local 480 threatened other em-
ployees and made attempts to coerce employee senti-
ment. The hearing officer found that during the 1- to 2-
week period immediately preceding the election, threats
of physical violence, property damage, and deportation
were made to several employees and disseminated
among several more.3 Applying the Board’s third-party
conduct standard to the evaluation of these threats, the
hearing officer concluded that they did not create a gen-
eral atmosphere of fear and reprisal, and therefore rec-
ommended that Objection 3 be overruled. The Employer
excepts, inter alia, to the hearing officer’s conclusion and
recommendation, contending that the employee threats
require that the election be set aside. For the reasons set

1 334 NLRB 977 (2001).
2 The Employer filed 10 objections. Prior to the hearing, the Acting
Regional Director approved the Employer’s request to withdraw Objec-
tions 7 and 9. The hearing officer recommended that the rest of the
Employer’s objections all be overruled. Absent exceptions, we adopt
pro forma the hearing officer’s recommendations concerning Objec-
tions 1 and 6. In Objection 1, the Employer sought to reargue the mer-
its of the Board’s August 2001 decision setting aside the first election
and directing a second election. While Member Cowen joins in adopt-
ing pro forma the hearing officer’s recommendation concerning Objec-
tion 1, he notes that he did not participate in that earlier decision. We
also adopt the hearing officer’s recommendations concerning Objec-
tions 2, 4, 8, and 10. As explained below, we will sustain Objection 3.
Accordingly, we find it unnecessary to pass on Objection 5, which
alleged electioneering and disruptive conduct in the polling area while
voting was in progress.
3 In fn. 11 of his report, the hearing officer mistakenly included Dar-
rell Rhodes in the list of employees to whom allegedly objectionable
statements were made. In fact, there is no evidence that Rhodes was on
the receiving end of any such statement.
forth below, we find merit in the Employer’s exceptions
concerning Objection 3. Accordingly, we sustain Objec-
tion 3 and set aside the second election, and we will di-
rect a new election.
There are no exceptions to the following factual find-
ings of the hearing officer concerning threats made by
prounion employees Henry Watts and Chris Shouse at
the Employer’s facility.4
Watts told employee Carl Becker that (in Becker’s
words) “if I didn’t vote for the Union and I crossed that
picket line, . . . he was going to crack my head.” Becker
recounted this threat to employee William Spencer Jr.
Shouse made a number of threats. During a conversa-
tion about strikes, Shouse said to employee Shane
Owensby that Owensby was not “crazy enough to cross a
picket line.” Owensby answered that he had a family to
feed and could not afford to walk a picket line. Shouse
replied, “You know if you cross it, you know what hap-
pens to you. I’m going to make sure I’ll take care of
your truck.” Owensby related Shouse’s threat to em-
ployees Harvey Carpenter and Jeffrey Suter.
4 In addition to these threats, the hearing officer mentioned several
other statements allegedly made by Shouse and employee Tommy
Thomas. Specifically, the hearing officer noted that (a) employee Euler
Reyes testified that Shouse told Reyes he “better vote” for the Union;
(b) employee Jeffrey Suter testified that Shouse told employee Harvey
Carpenter that something would happen to Carpenter if he crossed a
picket line; (c) Rhodes testified that Shouse told employee Chad Mun-
day that if there was a strike and Munday crossed a picket line, some-
thing might happen to Munday or his car; and (d) Carpenter testified
that Thomas told Carpenter and several others, “You can bet if we go
on strike, there ain’t going to be no mother fucker coming up in here
working if I can’t come up in here.” There are no exceptions to the
hearing officer’s failure to find that these additional statements, if
made, constituted objectionable threats. Therefore, we do not pass on
these statements.
There are also no exceptions to the hearing officer’s findings con-
cerning another statement that Thomas made to Carpenter. According
to the hearing officer, three witnesses testified as follows concerning
this statement. (1) Carpenter testified that Thomas told him: “Any-
body who votes for the Company should have their asses kicked.” (2)
Suter testified that Carpenter told him that Thomas told Carpenter that
anyone who voted for the Company deserved to have their butts kicked.
(3) Employee Shane Owensby testified that Carpenter told him that
Thomas told Carpenter that anybody who crossed the picket line
needed their butts whipped. Thus, two witnesses testified to a voting-
related statement, and one testified to a “picket line” statement. The
hearing officer found that the statement Thomas in fact made was “to
the effect that employees who crossed a picket line deserved to have
their butts kicked.” In so finding, the hearing officer did not explain
why he relied on Owensby’s hearsay version of what Thomas said over
Carpenter’s first-hand testimony, corroborated by Suter. The hearing
officer also found that Thomas made the statement in question to em-
ployee Carl Becker instead of Carpenter. To be clear, there is no evi-
dence that Thomas ever made any allegedly objectionable statement to
Becker. In any event, in finding the threats that were made in this case,
we have not relied on any version of what Thomas allegedly said to
Carpenter because the hearing officer found that the statement was not
a threat, and there are no exceptions to that finding.
338 NLRB No. 74
ROBERT ORR–SYSCO FOOD SERVICES 615
On another occasion, Shouse threatened Suter as well.
After Suter told Shouse that striking employees would
not make any money but nonstriking employees would,
Shouse replied, “You know what happens when you
cross a picket line.” Approximately three other employ-
ees overheard Shouse’ statement.
During a conversation with employee Joseph Hatley,
Shouse asked Hatley what he would do if there were a
strike. Hatley responded that he would cross the picket
line and work. Shouse then asked if Hatley knew what
would happen. Hatley replied that he would make a lot
of money. Shouse answered, “Well, you better have
good insurance.” On another occasion, employee Greg-
ory Jaster overheard Shouse telling an employee: “If it
were to be yes and they were to go on strike, if people
were to—people that work for the company were to cross
the picket line, it wouldn’t be a pretty thing.”
Finally, employee Rashaun Burks overheard Shouse
and three other individuals planning to threaten Hispanic
employees in relation to their vote in the upcoming elec-
tion. According to Burks, these four said “that they were
going to tell the Mexican guys that if they don’t go for
the Union, they were going to tell them that they were
illegal and didn’t have their papers and stuff like that, so
they would lose their job.” Sometime later, Shouse put
this plan into action. Approaching employee Euler
Reyes, a native of Mexico, Shouse asked him if he had a
green card. Reyes laughed, but Shouse said, “Well,
you’re illegal here.” Shouse then told Reyes, “You’d
better vote for the Union, because if you don’t, we’re
going to take your ass back to Mexico.” Reyes related
this threat to Burks and a supervisor.
Stating that he had taken into account the closeness of
the vote, the hearing officer nevertheless concluded that
the extent of dissemination of the foregoing threats was
insufficient to create a general atmosphere of fear and
reprisal rendering a fair election impossible. In so con-
cluding, the hearing officer was influenced by two con-
siderations. First, he observed that third-party threats
made by union supporters reasonably cause less concern
among employees than threats made by representatives
of the union that may become the employees’ exclusive
representative. Second, relying on Cal-West Periodicals,
330 NLRB 599 (2000), he found it likely that threats
related to crossing picket lines would have caused em-
ployees to vote against the Petitioner, not for it, in order
to avoid the prospect of strikes and picket lines alto-
gether. For the following reasons, we find the hearing
officer’s analysis unpersuasive.
First, despite his statement to the contrary, the hearing
officer did not sufficiently take into consideration the
closeness of the election results. Objections must be
carefully scrutinized in close elections. Cambridge Tool
& Mfg. Co., 316 NLRB 716 (1995); Colquest Energy,
Inc. v. NLRB, 965 F.2d 116, 122 (6th Cir. 1992). Given
the vote spread, a one-vote swing away from the Peti-
tioner would have brought the Petitioner’s three chal-
lenges into play, potentially changing the outcome of the
election—and threats were made to at least five employ-
ees and disseminated to at least four more employees.
The Board has set aside elections where, as here, threats
have been made or disseminated to voters whose ballots
might have been determinative. See Steak House Meat
Co., 206 NLRB 28 (1973); Buedel Food Products Co.,
300 NLRB 638 (1990); Smithers Tire, 308 NLRB 72
(1992).
Second, the general proposition that employees rea-
sonably are less concerned about nonagent threats than
about threats emanating from the union does not explain
why the nonagent threats in this particular case should be
found unobjectionable. Rather, it explains, at least in
part, why the Board assesses the impact of third-party
threats under a more rigorous standard than it applies to
threats made by union agents. Threats by union agents
warrant the setting aside of an election where they “rea-
sonably tend[ed] to interfere with the employees’ free
and uncoerced choice in the election.” Baja’s Place, 268
NLRB 868 (1984). Third-party threats, on the other
hand, rise to the level of objectionable conduct only
where they were “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). We agree with the hearing officer that the
Westwood Horizons test is applicable here. However, we
do not think, as did the hearing officer, that a reason jus-
tifying the rigorous third-party standard for evaluating
nonagent threats should count again to make that stan-
dard even more difficult for the objecting party to meet.
Third, the hearing officer’s reliance on Cal-West Peri-
odicals for the proposition that “picket line” threats
would have caused employees to vote against the Union
was misplaced. Before explaining why, however, we
first address our dissenting colleague’s characterization
of the Board’s holding in Cal-West. According to our
colleague, Cal-West “held” that except in unusual cir-
cumstances, “references to future reprisals for crossing a
picket line are not sufficiently immediate to create an
atmosphere of fear and reprisal.” In our view, this state-
ment misconstrues Cal-West. No such per se rule is to be
found in that decision. Rather, the Board merely found,
on the particular facts presented, that the single picket
line threat in that case “had no context of immediacy.”
330 NLRB at 599.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616
In Cal-West Periodicals, the Board found a single
“picket line” threat insufficient to warrant setting aside
an election.5 In so finding, the Board observed that the
likely effect of the “picket line” threat would have been
to prompt the threatened employee to vote against the
union to avoid the prospect of a union picket line. Id. at
600 fn. 6. However, Cal-West is distinguishable from
the instant case, where union supporters made multiple
threats of picket line violence, threatened physical re-
taliation for voting against the Union, and threatened
deportation for voting against the Union. The miscon-
duct in the instant case is accordingly more severe than
the misconduct in Cal-West with regard to the number of
employees making the threats, the number of employees
threatened, and the nature and variety of the threats.
Moreover, although a “picket line” threat made during
an election campaign might encourage an intimidated em-
ployee to vote against the union in the hopes of avoiding a
picket line situation, this is not the only or indeed the most
pernicious result of such a threat. Where prounion em-
ployees are issuing threats of any kind against antiunion
coworkers, opponents of the union will likely think twice
before pinning on a “vote no” button, passing out anti-
union literature, or speaking their minds freely. Two con-
sequences may ensue. First, the union may appear to
command a degree of support that it does not in fact enjoy,
which in turn may influence the votes of undecided em-
ployees. Second, the arguments in favor of unionization
will tend to predominate among employees during the
campaign, possibly swaying some to vote “yes” who
might have voted “no” had the voices of all employees
been heard.
Our dissenting colleague contends that in setting aside
the election, we have relied too heavily on the closeness of
the vote and have failed to explain why the threats at issue
here were sufficiently aggravated to create a general at-
mosphere of fear and reprisal. The Board has repeatedly
found, however, that voting-related threats of substantial
harm directed at a determinative number of voters create
an atmosphere of fear and reprisal sufficient to set aside an
election. See Steak House Meat Co., 206 NLRB at 29;
Buedel Food Products, 300 NLRB at 638; Smithers Tire,
308 NLRB at 73; accord: John M. Horn Lumber Co. v.
NLRB, 859 F.2d 1242 (6th Cir. 1988). In this case, aside
from the several “picket line” threats, two additional

5 The statements at issue in Cal-West also included a statement that
the threatened employee should “wait and see” what would happen if
he did not vote for the union. The Board found, however, that this
statement was ambiguous and did not necessarily constitute a threat of
physical harm. Id.
Member Cowen agrees that, as explained below, the Board’s deci-
sion in Cal-West is distinguishable from the instant matter; thus, he
expresses no view on the merits of that decision.
threats remain: Reyes was threatened with deportation,
and Becker with physical violence, for voting against the
Union. The character of these threats was grave, as they
were intended to influence votes and intimated substantial
harm; and again, a single changed vote could have altered
the outcome of the election. Thus, consistent with the
precedent cited above, we disagree with our colleague’s
view that threats of this character are insufficient to set the
election aside.
Our dissenting colleague mistakenly asserts that we
have applied the third-party conduct standard to the threats
at issue in this case as though it were no different from the
test applied to party-agent conduct. In support of her as-
sertion, she relies on Q. B. Rebuilders, Inc., 312 NLRB
1141, 1142 (1993), for the proposition that the Board’s
more stringent test for third-party threats prevents elec-
tions from being overturned “simply because a partisan
employee makes overbearing or exuberant remarks to co-
workers.” In Q. B. Rebuilders, however, the Board was
dealing with threats that might have been meant as jokes
and that were understood as such by some employees. In
that case, prounion employee Cortes stated on several oc-
casions that he would report to the INS anyone who voted
against the union. However, the first time Cortes made
this statement, he and his listeners all laughed. Subse-
quently, Cortes twice insisted that the remark was just a
joke, and some of his coworkers took his remark in that
vein. It was in this context that the Board understandably
cautioned against applying the third-party conduct stan-
dard so as to overturn an election because of “overbearing
or exuberant remarks” by employees. Here, however,
there is no suggestion that any of the several threats ut-
tered by prounion employees was meant or taken as a joke.
Thus, the cautionary language our colleague quotes from
Q. B. Rebuilders has no application here.
What does apply here, however, is the Board’s finding
in Q. B. Rebuilders that a deportation-related threat to call
the INS—even one uttered in jest—constitutes a serious
threat of economic and emotional harm. Id. at 1142. In an
earlier case, the Board explained that threats of deportation
are serious because they convey the warning that employ-
ees risk not just job loss, “but also the loss of their homes
and possibly even separation from their families by failing
to support the [u]nion.” Crown Coach Corp., 284 NLRB
1010 (1987). Despite these statements, our dissenting
colleague, citing Mike Yurosek & Sons, 225 NLRB 148,
150 (1976), asserts that Board precedent “holds” that a
threat of deportation by fellow employees “does not, by
itself, exacerbate illegal aliens’ natural fear of deportation
so as to render them incapable of exercising a free choice
in the election.” In other words, according to our col-
league the Board has held, as a matter of law, that em-
ROBERT ORR–SYSCO FOOD SERVICES 617
ployee threats of deportation are insufficient to set aside an
election. Crown Coach contradicts this assertion. There,
the Board found third-party deportation threats sufficient
in themselves to set an election aside. 284 NLRB at 1011.
It is true that in Mike Yurosek, the Board stated that it
“doubt[ed]” whether the threats and rumors of deportation
in that case so exacerbated illegal alien employees’ natural
fears of deportation as to render them incapable of a free
election choice. 225 NLRB at 150. In upholding the elec-
tion, however, the Board in Mike Yurosek placed primary
emphasis on the “substantial efforts” that had been made
to contradict the threats, lessening their impact. Id. No
such effort was made here, so we find Mike Yurosek dis-
tinguishable.
Accordingly, for all the foregoing reasons, we sustain
the Employer’s Objection 3 and set aside the election, and
we shall direct a third election.
[Direction of Third Election omitted from publication.]

MEMBER LIEBMAN, dissenting.
Contrary to the majority, and consistent with our case
law, I would find that the statements relied on by the ma-
jority did not create a general atmosphere of fear and re-
prisal that made a free election impossible. Westwood
Horizons Hotel, 270 NLRB 802, 803 (1984). My col-
leagues acknowledge that the Westwood standard is con-
trolling here, but they apply the standard as if it was no
different from the less rigorous standard the Board applies
to threats made by agents of the employer or the union.
See Cal-West Periodicals, 330 NLRB 599, 600 (2000).
As the Board stated in Q. B. Rebuilders, 312 NLRB 1141,
1142 (1993), the higher requirement for third-party threats
prevents the Board from overturning elections “simply
because a partisan employee makes overbearing or exu-
berant remarks to coworkers.”1 Thus, contrary to the ma-
jority’s apparent suggestion, the third-party standard is,
appropriately, more difficult for the objecting party to
meet.
Under the Westwood standard, the Board utilizes the fol-
lowing factors (including the nature of the threat itself) in
evaluating the seriousness of a threat:

[W]hether the threat encompassed the entire bargain-
ing unit; whether reports of the threat were dissemi-
nated widely within the unit; whether the person mak-
ing 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

1 The majority asserts that this statement only refers to the “joking”
context of the threats to call the INS in Q. B. Rebuilders. But the
Board’s discussion clearly endorses setting aside elections only in cases
of the most serious third-party misconduct. Ibid.
the threat was “rejuvenated” at or near the time of the
election.

Westwood Hotel, supra at 803 (internal citations omitted).
The Employer, as the objecting party, must establish the
conduct to be objectionable. Q. B. Rebuilders, 312 NLRB
at 1141–1142. Moreover, it is well settled that
“[r]epresentation elections are not lightly set aside.”
NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 328 (5th
Cir. 1991), citing NLRB v. Monroe Auto Equipment Co.,
450 F.2d 1329, 1333 (5th Cir. 1972), cert. denied 412 U.S.
928 (1973). Accordingly, “the burden of proof on parties
seeking to have a Board-supervised election set aside is a
‘heavy one.’” Kux Mfg. Co. v. NLRB, 890 F.2d 804, 806
(6th Cir. 1989), quoting Harlan #4 Coal Co. v. NLRB, 490
F.2d 117, 120 (6th Cir. 1974).
As an initial matter, the majority errs in its heavy reli-
ance on the closeness of the election in justifying its deci-
sion. While the Board will take into account the closeness
of an election, a third-party threat still must be proven to
be sufficiently aggravated in order to create a general at-
mosphere of fear and reprisal. As the Board stated long
ago: “The question of whether or not such an atmosphere
existed does not turn on the election results, but rather
upon an analysis of the character and circumstances of the
alleged objectionable conduct.” Central Photocolor Co.,
195 NLRB 839 (1972). The majority here fails to do such
an analysis.
As to the specific statements found objectionable, the
majority mainly relies on employee comments regarding
reprisals for crossing a picket line. Except in unusual cir-
cumstances, the Board has held that references to future
reprisals for crossing a picket line are not sufficiently
immediate to create an atmosphere of fear and reprisal in
regard to the election at hand. Cal-West Periodicals, 330
NLRB at 599. In fact, as noted by the hearing officer here,
the Board in that case found that such threats of picket line
reprisals would tend to persuade employees to vote against
the union in order to avoid the prospect of a strike alto-
gether. Id. at 600 fn. 6.2 Contrary to the majority’s at-
tempt to limit Cal-West to the particular circumstances of
that case, the Board there clearly provided a broader ra-
tionale for why threats of future picket line reprisals lack
the requisite “context of immediacy.” The Board, in re-
sponding to a dissenting member, distinguished the two
sets of threats in that case as being qualitatively different:
“the first one allegedly concerns the consequences of not
2 The majority seeks to distinguish Cal-West on the basis that it in-
volved only one picket line remark. But the Board, in assessing that
remark (as well as a threat made in reference to the election), held that
the qualitative aspect of the threats did not rise to the third-party stan-
dard: “the statements simply lack the same degree of specificity or
likely coercive impact.” Id. at 599.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618
selecting the Union; the second one allegedly concerns the
consequences of selecting the Union, i.e., picket lines and
the consequences of crossing them.” Id. at 599 (emphasis
in original).3 Clearly, the Board in Cal-West discussed
specific differences between categories of threats and why
threats of future picket line violence, in the absence of
aggravating circumstances, tend not to carry sufficient
immediacy to be objectionable. In any case, the majority
here has failed to demonstrate that the remarks created the
required atmosphere of fear and coercion.4
The majority also relies on statements regarding a plan
to threaten Hispanic employees with deportation (which
seems to have been followed through on in only one in-
stance). Again, the majority’s rationale goes against
Board precedent, which holds that a threat by fellow em-
ployees to call the immigration authorities during an elec-
tion campaign does not, by itself, exacerbate illegal aliens’
natural fear of deportation so as to render them incapable
of exercising a free choice in the election. Mike Yurosek
& Sons, 225 NLRB 148, 150 (1976), enfd. 597 F.2d 661
(9th Cir. 1979); compare Q. B. Rebuilders, 312 NLRB at
1142 (threat to call INS found objectionable because ac-
tual INS arrest occurred on the day before the election
where work force was found to be 90-percent non–U.S.
citizens).5
Putting aside these statements, we are left only with
employee Watts’ threat to “crack” employee Becker’s

3 The Board also discussed the particular circumstances of the Steak
House and Buedel cases (also relied on by the majority here), but
stressed that the threats in those cases were directed against the em-
ployees’ vote and much more severe. Id. at 599 (citations omitted).
The Board then distinguished a picket line threat found to be objection-
able in another case on the basis that it was made by a party to the
election (and thus was not a third-party threat) and referenced a particu-
larly severe incident of prior picket line violence. Id. at 599–600.
These circumstances distinguish those cases from the situation here.
4 Instead of pointing to evidence of a general atmosphere of fear and
coercion, the majority does nothing more than speculate that such
statements by prounion employees “may” reduce the efficacy of the
antiunion campaign.
5 The majority claims that the Board’s decisions in Q. B. Rebuilders,
supra, and Crown Coach Corp., 284 NLRB 1010 (1987), support its
position on threats of deportation here. In finding such threats objec-
tionable in Q. B. Rebuilders, the Board distinguished Mike Yurosek,
supra, by noting other factors: in the earlier case there were mitigating
disavowals of the threats, the large percentage of undocumented work-
ers in the election unit in the Q. B. Rebuilders workplace, and most
importantly, the rejuvenation of the threat by an INS arrest at the facil-
ity the day before the election. 312 NLRB at 1142. Similarly, in
Crown Coach, supra, the Board found that 65–70 percent of the unit
was Hispanic; that the threats sufficiently concerned the unit employees
to cause 20–30 of them to question a manager about whether the union
would take such an action in the event of its defeat; and that the threat
was repeated just before the election. In contrast, here the hearing
officer did not make a finding as to how many unit employees were
vulnerable to such a threat—or even whether the single employee di-
rectly threatened was undocumented.
head if he did not vote for the Union and if he crossed the
picket line. The Employer did not demonstrate, as re-
quired by Westwood, that Watts either had any present
capability of carrying out the threats or the likelihood that
employees acted in fear of any such capability. 270
NLRB at 803. Moreover, the threat was only partly in
reference to the election.
While I do not condone any of these statements, I find,
as discussed above, that they do not constitute sufficient
grounds—even in the context of a close tally—upon which
to set aside the election. As one court has stated, “A cer-
tain measure of bad feeling and even hostile behavior is
probably inevitable in any hotly contested election.” Na-
bisco, Inc. v. NLRB, 738 F.2d 955, 957 (8th Cir. 1984).
For these reasons, I would deny the Employer’s Objection
3 concerning certain employee threats during the election
campaign, adopt the hearing officer’s report, and certify
the election.
APPENDIX
HEARING OFFICER’S REPORT AND
RECOMMENDATIONS ON OBJECTIONS TO CONDUCT
AFFECTING THE RESULTS OF THE ELECTION
. . . .
Objections 2 and 3
These objections allege in substance that agents, representa-
tives, employees, and/or supporters of the Petitioner coerced
employees prior to the election and thereby destroyed the labo-
ratory conditions necessary for a fair and free election.
Denis Huey, the Petitioner’s business agent, testified that the
Petitioner ran a “low key campaign” that consisted primarily of
handbilling early in the morning on two or three Fridays and on
the day of the election. The handbilling took place on a public
road adjacent to the Employer’s facility. Employees partici-
pated in distributing the handbills. There was no organizing
committee. The Petitioner did not train employees or provide
them with any written guidelines or materials as to how they
were to conduct themselves during the campaign.
The Employer contends that the Petitioner engaged in objec-
tionable conduct by handing out two of the handbills. One
handbill begins with the question, “What will our employer say
about a union?” and then purports to answer that question. The
other begins with “Management’s Big Lie on 401(k)’s” and
then purports to provide the truth concerning that subject. The
handbills were received in evidence as Employer Exhibits 1 and
2. I refused to receive evidence concerning the truth or falsity
of the Petitioner’s campaign propaganda.7 Midland Life Insur-
ance Co., 263 NLRB 127 (1982).
7 There is no evidence or contention that the handbills involve for-
geries or other deceptive conduct. Nor do the handbills suggest that the
Board endorses one party or the other in the election. In its post-
hearing brief, the Employer contends that “the Union made representa-
tions to employees which were not only false, but are impossible to
refute”; and that “the Board should consider the fact that the Union
ROBERT ORR–SYSCO FOOD SERVICES 619
A number of employees testified that other employees made
various threats to them in connection with the election. Unless
otherwise noted, all of these threats occurred at the Employer’s
facility and occurred roughly 1 to 2 weeks prior to the election.
Employee Carl Becker testified that he discussed the election
on one occasion with employee Henry Watts. Only Becker and
Watts were present. Watts noted that the Employer had previ-
ously discharged Becker’s brother and asked Becker if he was
going to vote for the Petitioner. Becker responded that he was
not and that he would cross the picket line and work if there
was a strike. According to Becker, Watts responded that “if I
didn’t vote for the Union and I crossed that picket line, that he
was going to crack my head.”8 Watts denied that he had any
conversations with Becker concerning the Petitioner’s organiz-
ing campaign or about picket lines or “cracking heads” in par-
ticular. I credit Becker. Employee William Spencer Jr. testi-
fied that Becker told him about this conversation prior to the
election.9
Employee Jeffrey Suter testified that he had a conversation
in the locker room with employee Chris Shouse. Approxi-
mately four other employees, including Shouse and Tommy
Thomas, were present. According to Suter, he told Shouse that
if the employees went on strike they would not be making any
money, but the employees who did not strike would. Shouse
responded, “You know what happens when you cross a picket
line.” The conversation then ended. Shouse denied ever dis-

distributed flyers and handouts, which contained obvious falsehoods
and which attribute statements and misconduct to the company.” Cit-
ing Van Dorn Plastic Machinery Co. v. NLRB, 736 F.2d 343 (6th Cir.
1984), the Employer contends that “the Board should, in fact, look into
the deceptive nature of the representations made by the parties during
election campaigns.” Even if binding, I would conclude that Van Dorn
is distinguishable. In that case, the Sixth Circuit stated:
There may be cases where no forgery can be proved, but where
the misrepresentation is so pervasive and the deception so artful
that employees will be unable to separate truth from untruth and
where their right to a free and fair choice will be affected. We
agree with the Board that it should not aside an election on the ba-
sis of the substance of representations alone, but only on the de-
ceptive manner in which representations are made.
Id. at 348. Since the Employer’s argument in its posthearing brief
relies on “the substance of representations alone” rather than on “the
deceptive manner in which representations are made” as the basis for
setting aside the election, I conclude that the Petitioner’s handbills are
not objectionable under Van Dorn. Cf. St. Francis Healthcare Centre,
336 NLRB 678 (2001) (applying Van Dorn as the law of the case and
concluding that the union engaged in objectionable conduct where its
“gross and material misrepresentations . . . were fraudulently con-
cealed”).
8 In an apparent attempt to demonstrate that Watts’ alleged threat
was to be taken seriously, the Employer offered evidence that Watts
became embroiled in a fight of some kind approximately 13 to 17 years
earlier when other employees attempted to pull his pants down and
throw him in the freezer. In view of the remoteness in time of this
incident and because it occurred as part of a sophomoric initiation rite, I
regard this evidence as having no probative value.
9 I received evidence that employees told other employees about al-
leged threats, or were told about such threats, for purposes of determin-
ing the extent of “discussion, repetition and dissemination among the
electorate.” Westside Hospital, 218 NLRB 96 (1975) (footnote omit-
ted).
cussing crossing a picket line with Suter. I credit Suter. Suter
further testified that employee Shane Owensby told him that
Shouse had threatened to bash in the windows and otherwise
damage his truck if he crossed a picket line. Finally, Suter
testified that employee Harvey Carpenter told him that em-
ployee Tommy Thomas told him that anyone who voted for the
Company deserved to have their butts kicked; and that Shouse
had told Carpenter that something would happen to him if he
crossed a picket line.
Owensby testified that he and Shouse had a conversation
about the organizing campaign, including going on strike and
crossing the picket line. According to Owensby, Shouse said
that Owensby was not crazy enough to cross a picket line.
Owensby responded that he had a family to feed and a 3-year-
old son. He further said that he could not afford to walk the
picket line. Shouse responded, “You know if you cross it, you
know what happens to you. I’m going to make sure I’ll take
care of your truck.” Owensby testified that no one else was
present during this conversation. Shouse denied that he ever
threatened anyone concerning crossing a picket line and spe-
cifically denied ever making any reference to Owensby’s truck.
Shouse affirmatively testified that he and Owensby did have a
conversation concerning crossing the picket line. According to
Shouse, Owensby told him of his intent to cross the picket line.
Shouse responded that that was Owensby’s business but that
Shouse did not believe in doing things like that. Owensby re-
sponded that he would be “packing” when he crossed the picket
line. I credit Owensby’s version of events.
Owensby also testified that Carpenter told him that Thomas
told Carpenter that anybody who crossed the picket line needed
their butts whipped. Finally, Owensby testified that Suter told
him that Shouse told Suter, “If you cross the picket line, you
know what can happen to you.”
Employee Euler Reyes testified that Shouse asked him if he
was going to vote for the Petitioner. Reyes responded that he
did not know and that where he came from (Mexico) they did
not have this kind of stuff. Shouse told Reyes that he better
vote for the Petitioner. Shouse then told a forklift driver who
was working nearby that the latter should not talk to Reyes
because Reyes was going to vote for the Employer. On another
occasion, Shouse asked Reyes if he had a “green card.” Reyes
“laughed it off” but Shouse then said, “Well, you’re illegal
here.” According to Reyes, Shouse added, “You’d better vote
for the Union, because if you don’t, we’re going to take your
ass back to Mexico.” Shouse denied that he had any conversa-
tion with Reyes in which the latter’s immigration status or
“green card” came up. According to Shouse, Reyes told him
that he was concerned the Employer would fire him if the Peti-
tioner was voted in and that he did not understand the process.
Shouse responded that unions provided employees with more
job security because there was someone to stand up for them.
According to Shouse, Reyes also asked if the Petitioner would
attempt to buy his vote. Shouse thought Reyes was joking and
did not respond. Reyes then asked whether the Employer
would attempt to buy his vote. Shouse responded that that was
between the Employer and Reyes. I credit Reyes’ version of
events. Reyes further testified that he related what Shouse told
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 620
him to employee Rashaun Burks and to a supervisor. Burks
corroborated this testimony.
Reyes also testified that on the day of the election he was in
the breakroom and Tommy Thomas asked him if he had voted
yet. Reyes responded negatively. According to Reyes, Thomas
then said, “You know what to vote. You vote yes. You know
what to vote because you know why they strike. Don’t be stu-
pid.” Thomas did not specifically deny Reyes’ testimony. He
did testify that on at least one occasion he told Reyes in sub-
stance that he did not think there would be a strike. I credit
Reyes’ testimony.
Employee Rashaun Burks testified that on one occasion he
overheard Shouse, employee Charles McDaniels, Thomas and
another individual who he knew only by the nickname “Bart
Simpson” talking. Burks testified that he could not tell which
person made the comment but that “I heard them saying that
they were going to tell the Mexican guys that if they don’t go
for the Union, they were going to tell them that they were ille-
gal and didn’t have their papers and stuff like that, so they
would lose their job or whatever.” Neither Shouse nor Thomas
specifically testified concerning this conversation. Neither
McDaniels nor “Bart Simpson” testified at all. I credit Burks.
Employee Harvey Carpenter testified that he and other em-
ployees, including Reyes, Burks, and “quite a few” others were
on break discussing what would happen in the event of a strike.
At one point Carpenter said that if there was a strike the Com-
pany would bring in replacements, train them, and keep ship-
ping out groceries. Tommy Thomas, who was not a part of the
conversation, leaned his head back and said, “Well, you can bet
if we go on strike, there ain’t going to be no mother fucker
coming up in here working if I can’t come up in here.” On
another occasion, Thomas told Carpenter in the presence of
other employees that “[a]nybody who votes for the Company
should have their asses kicked.” Finally, Carpenter testified
that Owensby told him that Shouse had threatened to damage
his truck.10
Thomas testified that he was terminated from his employ-
ment on September 9; that he had a conversation with Carpen-
ter approximately 10 minutes before he was fired; that Carpen-
ter said that he realized the Petitioner had been voted in but that
he was not going to strike and he would cross the picket line if
there was a strike; that Thomas told Carpenter that people are
serious about strikes and it would be dangerous for Carpenter to
come to work; and that Carpenter responded that he was not
worried because he had something to protect himself. Another
employee then told Thomas to “cut that out” and, according to
Thomas, he took that advice. Thomas denied that he had oth-
erwise threatened employees except that he did say that it
would be “foolish” or “stupid” to vote for the Company.

10 Carpenter also testified on cross-examination by the Petitioner’s
counsel that he heard Shouse make comments to Euler Reyes concern-
ing his country of origin and immigration status. At one point Carpen-
ter testified that Shouse told Reyes that he had “heard Mexico was
responsible for the World Trade Center bombings.” I take judicial
notice that the World Trade Center incident occurred on September 11.
The record fails to affirmatively establish that any of these comments
occurred prior to the election on September 6.
I credit Thomas’ version based on my observation of him
while testifying and based on his recitation of the details of the
conversation and the circumstances surrounding it. Thus, I
conclude that even if Thomas threatened Carpenter with ad-
verse consequences if he exercised his right to refuse to engage
in a strike, this threat occurred after the election.
Employee Darrell Rhodes testified that employee Chad
Munday told him that Shouse threatened him that if there was a
strike and he crossed a picket line something might happen to
him or his car. Munday did not testify. I credit Rhodes that
Munday made the statement attributed to him.
Employee Joseph Hatley testified that Shouse asked him
what he would do if there were a strike; that Hatley responded
that he would cross the picket line and work; that Shouse asked
if Hatley knew what would happen; that Hatley responded he
would make a lot of money; and that Shouse then said, “Well,
you better have good insurance.” Shouse did not specifically
deny this testimony but as noted previously did deny making
any threats to employees concerning crossing a picket line. I
credit Hatley.
Employee Jimmy Faulk Jr. testified without contradiction
that he attended a Halloween party in late October 2000 (after
the first election but prior to the second election); that a number
of prounion employees also attended the party; and that the
girlfriend of one of those employees told his girlfriend that
several people there did not like him, he did not need to be
there and he should watch his back.
Employee Billy Spencer described the atmosphere at the
Employer’s facility during the preelection period as being “in-
tense.” He offered little by way of concrete, specific testimony
as to the basis for this description.
Employee Gregory Jaster testified that 2 days prior to the
second election he overheard Shouse tell employee Charles
McDaniel that “if it were to be yes and they were to go on
strike, if people were to—people that work for the company
were to cross the picket line, it wouldn’t be a pretty thing.” I
credit Jaster over Shouse’s general denial.
Dorothy Merkle, the Employer’s vice president of human re-
sources, was also called as a witness by the Employer. She
testified without elaboration that five Hispanic employees were
eligible to vote in the election.
The credited evidence establishes that during the 1- to 2-
week period prior to the election, Watts threatened Becker with
physical violence if he did not vote for the Petitioner and
crossed a picket line; that Shouse expressly or impliedly threat-
ened Suter, Owensby, Reyes, Hatley, and Jaster with property
damage, deportation, or other untoward consequences in con-
nection with how they voted and whether they crossed a picket
line; and that Shouse, McDaniel, Thomas, or “Bart Simpson”
threatened “the Mexican guys” with loss of their jobs if they
did not vote for the Petitioner. The credited record evidence
also establishes that Thomas made a comment to at least Car-
penter to the effect that employees who crossed a picket line
deserved to have their butts kicked; and that Thomas told em-
ployee Reyes to “vote yes because you know why they strike.
Don’t be stupid.” The credited record evidence also establishes
ROBERT ORR–SYSCO FOOD SERVICES 621
that the nine named employees11 to whom the statements re-
counted above were originally directed told each other about
many if not all of these statements. In addition, Suter and Car-
penter testified that other employees (some of whom were
among the nine named employees) were present when certain
of these comments were made. However, the record does not
establish that the statements were otherwise widely dissemi-
nated throughout the voting unit. Although I have no reason to
disbelieve Faulk’s testimony, I note that the alleged threat at the
Halloween party is remote in time (almost a year prior to the re-
run election) and consists of multiple layers of hearsay. Ac-
cordingly, I conclude that this testimony has little if any proba-
tive value in resolving the Employer’s objections. Finally, I
give no weight to Billy Spencer’s testimony concerning his
subjective reaction to unidentified events during the pre-
election period. Culinary Foods, Inc., 325 NLRB 664, 665
(1998).
Employers and unions are generally not held responsible for
the acts of rank-and-file employees. Whether the conduct of
rank-and-file employees is attributable to a party is determined
in accordance with common law agency principles. Allegheny
Aggregates, 311 NLRB 1165 (1993). There is no record evi-
dence indicating that the conduct of the prounion employees
identified above was instigated, authorized, solicited, ratified,
condoned, or adopted by the Petitioner. Prounion status alone
is insufficient to establish agency. United Builders Supply Co.,
287 NLRB 1364, 1365 (1988). Accordingly, the conduct of the
prounion employees identified above is evaluated under the
third-party standard. Cal-West Periodicals, 330 NLRB 599,
600 (2000). The Employer, as the objecting party, has the bur-
den of establishing that “the third-party conduct during the
election was so aggravated as to create a general atmosphere of
fear and reprisal rendering a fair election impossible.” Id.
I conclude that the comment Thomas made to Becker to the
effect that employees who crossed a picket line deserve to have
their butts kicked constitutes Thomas’ opinion concerning the
appropriate fate for employees who crossed a picket line and
not a threat as to what he or other employees would or might do
to employees who crossed a picket line. Accordingly, I con-
clude that this comment, and dissemination of this comment,
does not support the conclusion that there existed a general
atmosphere of fear and reprisal during the preelection period. I
also conclude that Thomas’ comment to Reyes to “vote yes
because you know why they strike. Don’t be stupid” is too
ambiguous to support the conclusion that such an atmosphere
existed. Cf. Westwood Horizons Hotel, 270 NLRB 802, 803
(1984).
Threats of physical violence, property damage, deportation,
loss of employment, or other untoward consequences are proba-
tive in determining the existence of a general atmosphere of
fear and reprisal and, in appropriate circumstances, would war-
rant setting aside an election. See, e.g., Q. B. Rebuilders, Inc.,
312 NLRB 1141 (1993); Westwood Horizons Hotel, above. I
conclude that those circumstances are not present here. The
tally of ballots discloses that there were approximately 173

11 Becker, Suter, Owensby, Carpenter, Reyes, Burks, Rhodes,
Hatley, and Jaster.
eligible voters in this case. The record evidence establishes that
the threats made principally by Shouse but also by several other
prounion employees were made to or disseminated among nine
named employees and at least some additional employees.
However, I further conclude that the Employer has failed to
satisfy its burden of establishing that this “relatively limited
dissemination” of threatening statements was sufficient to “cre-
ate a general atmosphere of fear and reprisal rendering a fair
election impossible.” Culinary Foods, Inc., 325 NLRB at 664.
In reaching this conclusion, I have taken into account the fact
that the outcome of the election was close.12 Cambridge Tool
& Mfg. Co., 316 NLRB 716 (1995). However, I also recognize
that the Board and the courts are reluctant to overturn an elec-
tion based on statements that are not attributable to a party be-
cause those statements are evaluated under a different (i.e.,
third-party) standard, and because “employees reasonably have
a greater concern about threats emanating from the union that
may become their exclusive representative than they would
have from threats uttered by a single non-agent individual.”
Cal-West Periodicals, 330 NLRB at 600. In addition, it is
highly unlikely that any of the “picket line” threats would have
had the effect of coercing employees into voting for the Peti-
tioner. To the contrary, their likely effect would be to cause
employees to vote against representation in order to avoid the
prospect of a union picket line or having to cross it. Id. at 600
fn. 7. Accordingly, and for all the reasons above, I conclude
that Objections 2 and 3 lack merit.
. . . .
Objections 4, 5, and 8
These objections allege in substance that agents, representa-
tives, and employee supporters of the Petitioner engaged in
prolonged conversations with voters waiting in line to cast bal-
lots, and engaged in campaigning or other disruptive conduct in
the polling area; and that the Board agent who conducted the
second election failed to take appropriate steps to afford voters
a quiet period and an opportunity for reflection prior to casting
their ballots.
The scheduled times for the second election were 8 to 10:30
a.m. and 4:30 to 7 p.m. Preelection conferences were held at
7:30 a.m. and 4 p.m. Both parties had two observers at the
morning and afternoon sessions. The observers for the morning
and afternoon sessions were different. One Board agent was
assigned to conduct the election. At the preelection confer-
ences, the Board agent explained the ground rules for the elec-
tion and gave the observers written instructions (Form NLRB-
722) concerning their duties. The observers were instructed not
to engage in conversation other than social pleasantries with the
voters and to refer all questions concerning the election to the
Board agent. The parties agreed that the Employer’s reception-
ist would make an announcement over the Employer’s public
address system at 8 a.m. and 4:30 p.m. to advise employees that
the polls were open and that employees who wished to do so
could go vote.
12 I reject the Employer’s contention that I “presume” all three voters
who were challenged by the Petitioner voted against representation and
that therefore the margin of victory was one vote rather than four votes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 622
The official notice of election provided that the second elec-
tion would take place in the “Operations breakroom at the Em-
ployer’s main facility.” The Employer curtained off part of the
breakroom for use as the polling area. One of the Petitioner’s
representatives taped the curtain panels together prior to the
beginning of the election. The curtains were sufficiently trans-
parent that it was possible for those within the polling area to
see the silhouettes of individuals who were outside the polling
area but inside the breakroom. The preelection conference took
place in the polling area. There are three televisions in the
breakroom.
The original election in this case also took place in the break-
room. The Employer instructed employees to not use the
breakroom during the polling periods for the original election
but apparently did not give similar instructions for the re-run
election. The breakroom was not formally designated as a “no-
electioneering” zone.
The Employer contends that the curtained area was “poorly
designed” with “no visible means of entrance and exit”; that the
curtains did little to shield voters from the activities in the
breakroom; and that voters were at times confused as to how to
enter the polling area. I reject the Employer’s contention that
the physical construct of the polling area warrants setting aside
the election. See generally Sawyer Lumber Co., 326 NLRB
1331 (1998) (“When the integrity of the election process is
challenged, the Board must decide whether the facts raise a
reasonable doubt as to the fairness and validity of the elec-
tion.”). (Internal quotations and citations omitted.)
Employee Perry Manson testified in substance that he was
the first employee to vote in the second election; that he entered
the curtained area where the voting was taking place after the
Board agent announced the polls were open; that in addition to
the Board agent and the observers, Petitioner representative
Huey was present in the polling area; that neither an additional
union representative nor any company representatives were
present; and that Huey was gone when he finished voting.
Employee Thomas Stout testified that he entered the break-
room at “approximately 8 [a.m]”; that he observed two indi-
viduals wearing shirts that had a Teamsters Local 480 insignia
on them; that he did not see anyone wearing a suit; and that he
then joined four other employees who were already in line to
vote. At the hearing, Stout identified Petitioner representative
Huey as one of the individuals who was wearing a Teamsters
shirt. Other undisputed evidence establishes that the second
Petitioner representative was an unpaid organizer named Larry
Askew.
Employer observer Chris Dalton testified that two union rep-
resentatives and two company attorneys were in the polling
area prior to the beginning of the voting; and that at least one of
the company representatives was wearing a suit. Dalton ini-
tially testified that the union and company representatives all
left the voting area together prior to the announcement that the
polls were open. Later, he testified that the company represen-
tatives left first and the union representatives stayed behind for
approximately 3 to 5 minutes to tape the curtains closed. Dal-
ton further testified that the union representatives left the poll-
ing area “maybe ten minutes” prior to the opening of the polls;
that the Board agent then instructed the observers how to han-
dle the voting eligibility list; that they then “waited just a short
time”; and that the Board agent then announced that the polls
were open. Finally, Dalton testified that he did not recall Peti-
tioner representative Huey being in the polling area when the
polling started. The Employer’s second observer, Harold Las-
ter, testified that the Petitioner’s representatives were “on the
way out” at the time the Board agent announced that the polls
were open.
Petitioner representative Askew testified that he attended the
preelection conference; that after the conference he borrowed
some tape from the Board agent and taped gaps in the curtains
shut; that he, Huey, and the company attorneys all left the poll-
ing area at the same time; that they arrived in the reception area
at 3 minutes before 8 a.m.; that they waited 3 minutes before
the Employer’s receptionist read the announcement opening the
polls; and that the Petitioner representatives and company at-
torneys then left the premises. Similarly, Petitioner representa-
tive Huey testified that he, Askew, and the two company attor-
neys all left the preelection conference together; that they then
went to the reception area; that they waited a minute or two
before the announcement was made that the polls were open;
and that the union and company representatives talked for a
minute or two and then left the building through the front door.
Terry Woodard, one of the Petitioner’s observers for the morn-
ing voting session, testified that the two union representatives
and the two company attorneys left the polling area together
“about five minutes before” 8 a.m.; and that the Board agent
announced that the polls were open after they had left.
Sherry Sills, the Employer’s receptionist, testified that she
opens the switchboard at 8 a.m. and did so on the day of the
election; that the first thing she did after opening the
switchboard that day was read a notice over the Employer’s
public address system announcing that the polls were open; and
that the union representatives were both present at 8 a.m. when
she did so. Similarly, Dorothy Merkle, the Employer’s vice
president of human resources, testified that the Petitioner’s
representatives were present in the lobby “prior to 8 [a.m] be-
cause at 8 [a.m] on the nose we read the announcement in the
lobby”; and that the union representatives had been there
“probably ten to fifteen minutes prior to 8 [a.m].”
Employee Manson’s testimony would place at least one of
the Petitioner’s two representatives within the curtained area at
8 a.m. when the polls opened. Employee Stout’s testimony
would place both union representatives within the breakroom
but outside the curtained area at “approximately 8 [a.m].” The
testimony of the Employer’s observers, Dalton and Laster,
respectively, would place the union representatives as either
having just left, or as just leaving, the breakroom when the
polls opened. Petitioner observer Woodard testified to similar
effect. The testimony of Petitioner representatives Askew and
Huey and Employer witnesses Sills and Merkle place the union
representatives in the reception area by at least a couple of
minutes prior to 8 a.m. I credit Askew, Huey, Sills, and Merkle
on this point. Although the Employer introduced evidence that
it would have been theoretically possible for Askew and/or
Huey to have returned to the breakroom after the public address
announcement, I credit their testimony that they did not do so
ROBERT ORR–SYSCO FOOD SERVICES 623
and instead left the premises with the company attorneys.13
Accordingly, I conclude that the Petitioner’s representatives
were not in the breakroom at the time the polls opened at 8 a.m.
or shortly thereafter. Finally, even if Manson’s testimony were
fully credited, I would nonetheless conclude that the brief pres-
ence of one of Petitioner’s representatives in the polling area
would not warrant setting aside the election. Roney Plaza
Management Corp., 310 NLRB 441, 448 (1993).
Employees Paul Putnam and Diane Murray testified in sub-
stance that they voted in the morning session of the election;
that the Board agent informed them that their ballots were be-
ing challenged and explained the challenge procedure but did
not tell them why or by whom they were being challenged; and
that several other voters were in line waiting to vote at the time.
One of the Employer’s observers corroborated the gist of this
testimony. As is usual in these cases, the Board agent did not
testify. See Representation Casehandling Manual (Part Two),
Section 11429.1.
In its posthearing brief, the Employer contends that the
Board agent’s alleged failure to more fully detail the reasons
for the challenges to the ballots of Putnam and Murray “served
to taint the election by creating the impression that the Board
was not a neutral arbiter, but rather an active party to the elec-
tion.” Initially, I note that Section 11338.2(b) of the Represen-
tation Casehandling Manual provides in relevant part that “[t]he
reason for the challenge should be stated at the time the chal-
lenge is made.” However, and even assuming that the Board
agent failed to comply with the Casehandling Manual in this
regard, “the failure to achieve absolute compliance with [all of
the rules, regulations and guidelines for conducting an election]
does not necessarily require that a new election be ordered.”
Polymers, Inc., 174 NLRB 282 (1969), enfd. 414 F.2d 999 (2d
Cir. 1969). The Employer cites no case authority, and I have
found none, holding that a Board agent’s failure to state the
reason for a challenge at the time the challenge is made raises a
“reasonable doubt as to the fairness and validity of the elec-
tion.” Id. Accordingly, I reject the Employer’s contention that
alleged deficiencies in the challenged ballot procedure in this
case warrant setting aside the election.
Petitioner’s observer, William Norwood, testified that he ar-
rived for the second session of the election by about 4 p.m.; that
the Board agent was already there; and that the two Petitioner’s
representatives arrived at about 4:05 or 4:10 p.m. Norwood
further testified that after the union and company representa-
tives left, the Board agent looked at her watch and said,
“[W]e’ll give it a few more minutes” because it was not quite
4:30 p.m.; and that the Board agent looked at her watch at 4:30
p.m. and announced the polls were open. Petitioner observer
Paul Ridley similarly testified that the Board agent said that
“we still have a few more minutes” after the company and un-
ion representatives left and that “we had a few minutes to do
whatever we needed to do” before the polls opened.

13 In view of my credibility resolutions I find it unnecessary to con-
sider whether an adverse inference would be warranted based on the
failure of the Employer to call its attorneys to testify on this limited
point.
Sherry Sills testified that the union representatives had not
yet arrived when it was time to read the announcement at 4:30
p.m.; that she read the notice “[p]robably two or three minutes
after 4:30 p.m. because I kept looking at my watch”; and that
she then immediately went upstairs to punch out because she
was late for a part-time job. Sills’ timecard indicates that she
punched out at 4:35 p.m. Similarly, Dorothy Merkle testified
that Huey arrived in the lobby area for the afternoon voting
session “a couple of minutes past 4:30”; that he was present “by
4:32”; and that the announcement opening the polls was read
immediately after Huey arrived. Both Huey and Askew testi-
fied in substance that Sills read the announcement at 4:30 p.m.
Petitioner observer Woodard testified that “[e]very clock in
the building’s got something different on it”; and that “there’s
one clock, if you clock out for your break on it, and come back
on the other one, you’ll gain two or three minutes.” Another
Petitioner observer, Lamont Ridley, testified that the timeclocks
are sometimes 3 to 4 minutes apart. Merkle testified that she
has been alerted to problems with the timeclocks but that the
differences in time have been “shy of a minute.”
Keith McIntyre, the Employer’s manager of safety, training,
and security, was called as a witness by the Employer. McIn-
tyre testified that his duties on the day of the election included
escorting the Petitioner’s representatives on and off the prop-
erty; that because of a mixup, he did not do so after the morn-
ing preelection conference; and that visitors are required to sign
in and out at a card shack. Visitors typically check their own
watches to indicate their times in and out. The sign-in form for
the day of the second election discloses that the Union repre-
sentatives entered their arrival times as 4:22 and 4:24 p.m. and
their departure time as 4:38 p.m.
In its posthearing brief, the Employer contends that “[a]ll the
evidence points to the conclusion that the polls did not open at
4:30 p.m. as posted, but rather they opened several minutes
after that.” I reject this contention based on the testimony of
Petitioner observers Woodard and Ridley, which I credit, that
the Board agent waited until 4:30 p.m. and then opened the
polls. I further credit their testimony concerning the disparities
in timeclocks at different locations in the Employer’s facility.
Given these disparities, I conclude that it is impossible to de-
termine whether Sills read the announcement indicating that the
polls were open at 4:30 p.m., as Askew and Huey testified, or
within several minutes after that, as Sills and Merkle testified. I
further conclude that it is unnecessary to definitively resolve
this dispute for the simple reason that all of this evidence re-
lates to the time the announcement was read and not to the time
that the polls opened. Accordingly, I reject the Employer’s
contention that the record establishes that the Board agent
opened the polls late for the afternoon session. For this reason,
I further conclude that it is unnecessary to determine “whether
the number of employees possibly disenfranchised [by the late
opening of the polls] is sufficient to affect the election out-
come.” Pea Ridge Iron Ore Co., 335 NLRB 161 (2001).14
14 In its posthearing brief, the Employer contends that the alleged er-
ror in opening the polls late was compounded by the fact that the Em-
ployer posted signs on the televisions requesting that they remain off
“during voting hours: 4:30 to 7:30 p.m. Thank you.” The agreed-upon
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 624
Considerable and conflicting evidence was elicited at the
hearing as to whether the three televisions were on or off in the
breakroom during the morning session of the election and, if
they were on, how loud they were.15 I find it unnecessary to
detail the evidence, or to resolve the conflicts in the evidence,
since I conclude that loud television noise in the polling area
would not in any event constitute objectionable conduct.
Prestolite Wire Division, 225 NLRB 1 (1976) (noting that in
underlying representation case the Board rejected the conten-
tion that the election should be set aside because the Board
agent who conducted the election purportedly allowed “em-
ployees who were union organizers to make excessive noise in
the line near the voting booth”; and stating that “while [the
Board] did not condone the noisy and somewhat disruptive
atmosphere in which the election was conducted,” the “labora-
tory conditions [for conducting the election] were not impaired
by the amount and volume of conversation in the voting line”),
enfd. denied 592 F.2d 302 (6th Cir. 1979) (concluding that
employer was entitled to hearing on objections). For the same
reason, and relying on the same authority, I conclude that it is
unnecessary to detail and resolve the considerable evidence
elicited at the hearing concerning loud and at times profane
conversations among employees who were using the breakroom
during at least part of the afternoon polling times.16

polling time was instead from 4:30 to 7 p.m. I note that there is no
evidence that the Employer secured the agreement of the Petitioner or
the Board agent prior to posting these signs. I reject the Employer’s
attempt to advance its own unilateral and erroneous conduct as the
basis for sustaining its objections to the conduct of the election.
15 For example, one Employer witness—Perry Manson—testified
that the televisions were not on at the beginning of the election. Other
Employer witnesses—Thomas Stout and Harold Laster—testified that
they were. Employer witness Diane Murray testified that during the
morning session “[f]or the most part [the noise level] was pretty good.
I mean, there was a little mumbling, but nothing drastic.” One of the
Employer’s observers—Chris Dalton—testified that the televisions
were off and on, and the noise level up and down, at various times
during the morning session; that “it got extremely noisy with the people
coming in and out, and the TVs were on”; and that at one point the
Board agent asked that the televisions be “cut off.” Laster generally
corroborated this testimony. Terry Woodard, one of the Petitioner’s
observers in the morning session, testified that “[the televisions] were
off [during the morning voting session] because it was so quiet in
there.” Joe Robbins, a maintenance technician, testified without con-
tradiction that at Dorothy Merkle’s request he posted a sign on the
televisions prior to the afternoon session of the election requesting that
the televisions remain off during the voting.
16 Jimmy Faulk, a witness called by the Employer, testified that “[i]t
was pretty loud in there. It was typical—typical noise level of a day
coming in before the shift starts.” Joseph Hatley, one of the Employer
observers, testified that it was “quite loud” during the afternoon shift
changes; that he “could hear everybody talking, yelling”; that the Board
agent twice commented on how loud it was; and that there was consid-
erable profanity. Faulk and Hatley further testified that the voting area
was “intimidating” and “strange,” respectively. However, their subjec-
tive reactions are irrelevant in determining whether objectionable con-
duct occurred. Culinary Foods, 325 NLRB at 664–665. Another em-
ployee—Gregory Jaster—testified that when he went to vote between
4:30 and 5 p.m., “You could hear people talking, but there wasn’t, you
know, nobody being loud really or nothing.” Former employee Tommy
Thomas testified that he was in the breakroom at about 4:45 p.m.; that
Employer observer Chris Dalton testified that at one point
during the morning session the Board agent asked that the tele-
visions be “cut off”; that Petitioner observer James Taylor ex-
ited the curtained area in order to do so; that employee Mark
Tidwell was in the breakroom at the time; that Taylor asked
Tidwell if he had voted yet; and that Tidwell responded nega-
tively and indicated that he would vote later. Dalton further
testified that Taylor’s question to Tidwell disturbed him be-
cause it was contrary to the Board agent’s instructions; that he
mentioned the incident to the Board agent; but that the Board
agent indicated she had not heard Taylor’s question. I credit
Dalton’s testimony.
Employee Joseph Hatley, one of the Employer’s observers
for the second shift of the election, testified that he heard em-
ployees in the breakroom say such things to voters as they
walked toward the polling area as “Go get ’em. Go show ’em
the power”; that the curtain was somewhat transparent; and that
he “could see employee Chris Shouse sitting up there putting
his arm up like that, ‘Go get ’em, Dog. Go show Steve,’ which
is now a warehouse manager.” Hatley further testified that he
heard the employees tell an employee named James Haddocks,
who had been on vacation, “Well, we’re glad you could make
it. You’re going to show ‘em, ain’t you Dog.” Haddocks re-
sponded, “Yeah, I’ve got something to show them.” Shouse
denied all the foregoing testimony. I have previously discred-
ited Shouse’s testimony and do so again here.
Employee Shane Owensby testified concerning an incident
that occurred when he was standing in line outside the curtain
waiting to vote. Tommy Thomas was sitting at a table with a
group of five or six people. According to Owensby, he heard
Thomas ask on five or six occasions as voters emerged from the
curtained area, “Are you sure you voted the right way?” Tho-
mas denied this testimony and testified that “I’ve never even
had a five second conversation with him before ever—working
at the company.” I credit Owensby.
Employee Gregory Jaster testified that Tommy Thomas and
other employees were sitting at a table in the breakroom when
Jaster came in to vote; and that he overheard Thomas say to the
others, “It’d be in the people’s best interest to vote yes.” Tho-
mas did not specifically deny this testimony. I credit Jaster.
The credited evidence establishes that on one occasion dur-
ing the morning session the Petitioner’s observer briefly left the
curtained area and asked an employee if the employee had
voted yet. I conclude that such conduct is not objectionable.

he recalled employees discussing the “Michael Jordan comeback”; that
some of the employees, including himself, used loud and profane lan-
guage; and that someone told them to quiet down. Petitioner observer
Lamont Ridley testified that employees in the break room “got loud
once”; and that he told a voter “to tell them those guys—this was after
he voted—tell those guys to watch their language. There’s a lady in
there.” Employee Chris Shouse testified that he was in the breakroom
from 4:35 to 4:55 p.m.; that Thomas was also in the breakroom during
that time; that employees were discussing sports, including the Tennes-
see Titans but not including Michael Jordan; and that no one told them
to hold down the noise. I regard the inconsistencies between Shouse
and other witnesses concerning what occurred in the breakroom in the
half-hour after the polls opened in the afternoon as further reasons for
generally discrediting Shouse’s testimony.
ROBERT ORR–SYSCO FOOD SERVICES 625

At the outset, I reject the Employer’s contention that the entire
breakroom constituted the voting area. Rather, I conclude that
the curtained area within which the balloting actually took
place was the voting area. Westwood Horizons Hotel, 270
NLRB at 803 fn. 14.17 Although the Board’s decision in Mil-
chem, Inc., 170 NLRB 362 (1968), which prohibits conversa-
tions between parties to an election and voters, extends to ob-
servers, Modern Hard Chrome Service Co., 187 NLRB 82
(1970), it does not extend to such a “chance, isolated innocuous
comment or inquiry” as was involved in the brief interchange
between Taylor and Tidwell. Milchem, Inc., 170 NLRB at 363
(“We will be guided by the maxim that ‘the law does not con-
cern itself with trifles.’”). See also Sir Francis Drake Hotel,
330 NLRB 638 (2000) (union observer’s remarks to voters not
objectionable since brief and innocuous).
The credited evidence further establishes that prounion em-
ployees Shouse and Thomas exhorted prospective voters on
several occasions during the afternoon voting session to vote
for the Petitioner. I conclude that such conduct is not objec-
tionable. Initially I note that the conduct involved conversa-
tions between employees and did not involve a party to the
election. Rheem Mfg. Co., 309 NLRB 459 (1992). The proper

17 Pepsi-Cola Bottling Co., 291 NLRB 578 (1988), relied on by the
Employer, is not to the contrary. In that case, the Board concluded that
the no-electioneering area extended to lines that formed outside the
room where the polling took place. Although there is record evidence
indicating that such lines existed during the morning voting session,
there is no similar evidence regarding the afternoon voting session.
Rather, the only record evidence concerning lines during the afternoon
sessions is that on one occasion one employee—Shane Owensby—
briefly waited just outside the curtained area before entering to vote.
test to apply in these circumstances is whether the third-party
conduct is so disruptive of employee freedom of choice that the
election must be set aside. Boston Insulated Wire & Cable Co.,
259 NLRB 1118, 1119 fn. 6 (1982). In concluding that this test
has not been met, I note that Shouse and Thomas were only in
the breakroom for approximately 20 to 30 minutes prior to the
beginning of their 5 p.m. shifts, and that there is no evidence
that such exhortations occurred during the morning shift or the
balance of the afternoon shift. Crestwood Convalescent Hospi-
tal, 316 NLRB 1057 (1995). I also note that only one of the
employees (Owensby) was actually in the polling area or stand-
ing in line waiting to vote when a comment was made. Golden
Years Rest Home, 289 NLRB 1106 (1988); Mead Corp., 189
NLRB 190 (1971).18 Finally, I note that a number of the com-
ments attributed to Thomas were made to employees who had
already voted. Accordingly, and for all of the reasons set forth
above, I conclude that the Employer’s Objections 4, 5, and 8
lack merit.
Objection 10
I have considered and rejected all of the Employer’s conten-
tions, including its contention concerning the alleged late open-
ing of the polls, in connection with specific objections above.
Accordingly, I conclude that its “catch-all” objection also lacks
merit.
18 The Employer’s reliance on Brinks Inc., 331 NLRB 46 (2000), is
misplaced since there, unlike here, the electioneering took place in the
voting area and involved an observer. Pepsi-Cola Bottling Co., supra,
is also distinguishable since there, unlike here, voters were forced to
make their way through a “gauntlet” of cheering and chanting union
supporters who were waiting in line to vote.