Superior of Missouri, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 2002

338 N.L.R.B. 570 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 570
Superior of Missouri, Inc. and Teamsters Local Union
No. 682, affiliated with International Brother-
hood of Teamsters, AFL–CIO. Case 14–CA–
25421
November 20, 2002
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On May 2, 2002, Administrative Law Judge Robert A.
Pulcini issued the attached decision. The Respondent
and General Counsel filed exceptions, supporting briefs,
and answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1and conclusions2 as modified below.
An overview of this case and related proceedings con-
cerning a June 26, 1998 representation election, held
after a postponement, is helpful as background to our
current decision: the Respondent filed objections to the
conduct of the election, which the Regional Director,
without a hearing, recommended that the Board overrule.
The Board did so, certifying the Union. To pursue its
objections, the Respondent refused to bargain with the
Union. The Board found a violation of the Act, ordered
the Respondent to bargain, and petitioned the U.S. Court
of Appeals for the Eighth Circuit for enforcement of the
Order. The court remanded the matter to the Board for
an evidentiary hearing, which was held before the judge.
NLRB v. Superior of Missouri, Inc., 233 F.3d 547 (2000).
We now consider exceptions to his decision, based on the
hearing record.
1. We agree with the judge’s finding that Objection 1,
which alleges that the rescheduling of the representation
election disenfranchised employees and disrupted the
laboratory conditions under which the election should
have been conducted, is without merit. As more fully
explained in the judge’s decision, an election scheduled
for June 19, 1998,3 did not take place because Board
Agent Matt Lomax, who was assigned to conduct the
election, failed to arrive in time to open the polls as

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
2 No exceptions were filed to the judge’s recommendation to over-
rule the Respondent’s Objection 3.
3 All dates are in 1998 unless otherwise indicated.
scheduled.4 On that same day, Lomax conferred with the
parties concerning a new date for the election, and the
election was rescheduled for June 26. It is undisputed
that both parties agreed to the new election date.5 Lomax
then delivered new election notices to the Respondent,
which were subsequently posted at its facilities. The
election took place on June 26 without incident, and the
Union won by a vote of 41–20.
The Respondent argues that the rescheduling of the
election, due to Lomax’s late arrival, affected the out-
come of the election when it was ultimately held on June
26. However, the rescheduling of the election by itself is
not grounds for setting the June 26 election aside. See
Malta Construction Co., 276 NLRB 1494, 1510 (1985).
The Respondent does not allege, and the evidence does
not establish, that there were any irregularities in the
conduct of the June 26 election that would cast doubt on
the validity of the results. In the absence of such evi-
dence, we find no basis for setting the election aside.
In seeking to upset the election, the Respondent cites
cases6 in which the Board set aside a representation elec-
tion that was held after the Board agent arrived late or
proceeded even though the agent closed the polls early or
temporarily during polling hours. We find that those
cases are inapposite. They involved situations in which
the Board agent’s conduct on the day of the election dis-
rupted the polling hours, raising the possibility that some
employees had been disenfranchised or that the vote may
have been affected by the irregularities that occurred
during the election. See, e.g., Midwest Canvas Corp.,
supra. Here, in contrast, the parties agreed to reschedule
the election, after the Board agent’s late arrival frustrated
the original effort to proceed. The Respondent now ar-
gues that the postponement of the election affected the
outcome of the rescheduled election held 7 days later.
The Respondent does not contend that the polling hours
on June 26 were disrupted by the Board agent’s conduct
4 It is uncontroverted that Lomax’s failure to show up on time was
due to circumstances beyond his control.
5 The Respondent offered no evidence to rebut Lomax’s testimony
that Respondent’s attorney Linihan told Lomax the June 26 date for the
election “would be fine.”
In agreeing with the judge’s overruling of Objection 1, Members
Cowen and Bartlett find speculative the judge’s statements that the
Respondent, in agreeing to a new election date, was engaging in a
“gambit” and was “bankrolling” its possible objections. Moreover, the
Respondent’s motive in agreeing to a new election date is irrelevant.
Accordingly, Members Cowen and Bartlett find it unnecessary to rely
on these statements by the judge.
6 Midwest Canvas Corp., 326 NLRB 58 (1998); Wolverine Dispatch
Inc., 321 NLRB 796 (1996); Jim Kraut Chevrolet, 240 NLRB 460
(1979); Grant’s Home Furnishings, Inc., 229 NLRB 1305 (1977);
Nyack Hospital, 238 NLRB 257 (1978); B&B Better Baked Foods, Inc.,
208 NLRB 493 (1974); and Kerona Plastics Extrusion Co., 196 NLRB
1120 (1972).
338 NLRB No. 69
SUPERIOR OF MISSOURI, INC. 571
on that day, or that there were any irregularities in the
conduct of that election that affected the results. In these
circumstances, we find the cases cited by the Respondent
are inapplicable here.7
2. We also affirm the judge’s reliance on Alladin Plas-
tics, Inc., 182 NLRB 64 (1970), in finding that an alleged
rumor that the June 19 election did not take place be-
cause the Respondent “paid off the Labor Board” did not
affect the laboratory conditions surrounding the June 26
election. Under circumstances similar to those here, the
Board in Alladin found no grounds for setting aside an
election where the Union had nothing to do with starting
or spreading a rumor that the employer had “bought off”
the Board. Id. at 64. Here, as in Alladin, it is clear that
the Union had nothing to do with the alleged rumor; in-
deed, the evidence shows that the union agent attempted
to put an end to it before it could spread.8
Prior to remanding this case to the Board, the Eighth
Circuit found Alladin to be materially distinguishable,
based on the prehearing evidence presented by the Re-
spondent. See NLRB v. Superior of Missouri, Inc., supra.
Specifically, the court determined that “without a hear-
ing, we cannot know whether Union organizers or sup-
porters helped fuel the rumor to Superior’s disadvan-
tage.” Id. That question has now been answered, nega-
tively. We find that the evidence presented at the hearing
after remand, discussed above and more fully described
in the judge’s decision, demonstrates that the credible
facts of this case do not differ from those in Alladin in
any material way. We therefore affirm the judge and
find Alladin to be controlling.
Because we find no merit in the Respondent’s objec-
tions to the election conducted on June 26, 1998, we re-
affirm the Certification of Representative issued on No-
vember 30, 1998, and our original Decision and Order
issued on March 31, 1999.9 See K Mart Corp., 322
NLRB 1014 (1997), enfd. 125 F.3d 572 (7th Cir. 1997);

7 We similarly find the judge’s reliance on Glass Depot, Inc., 318
NLRB 766 (1995), and Pea Ridge Iron Ore Co., 335 NLRB 161
(2001), to be inappropriate, as neither of those cases involved the valid-
ity of a rescheduled election.
8 Although they recognize that the current Board does not require it,
Members Cowen and Bartlett are of the view that, when, as here, an
election must be rescheduled for administrative reasons and not due to
the fault of any party, it would be preferable for the notice of the re-
scheduled election to state that the election had been rescheduled solely
for the Board’s administrative reasons. Such language would dispel
any erroneous impression among employees that the election was re-
quired to be rescheduled because of misconduct by any party.
9 327 NLRB 1208 (1999), enf. denied 233 F.3d 547 (8th Cir. 2000).
As stated in our previous Decision and Order, we shall construe the
initial period of certification as beginning on the date that the Respon-
dent begins to bargain in good faith with the Union.
Monark Boat Co., 276 NLRB 1143 (1985), enfd. 800
F.2d 191 (8th Cir. 1986).10
ORDER
The National Labor Relations Board overrules all of
the Employer’s objections to the election conducted on
June 26, 1998, in Case 14–RC–11946, and affirms its
Decision and Order issued on March 31, 1999, reported
at 327 NLRB 1208 (1999), with the Respondent, Supe-
rior of Missouri, Inc., St. Louis, Missouri, its officers,
agents, successors, and assigns, ordered to take the action
set forth therein.

Lucinda L. Flynn, Esq., for the General Counsel.
Geoffrey M. Gilbert Jr., Esq., and Stephen B. Maule, Esq.
(McMahon, Berger, Hanna, Linihan, Cody & McCarthy),
of St. Louis, Missouri, for the Respondent.
Brian A. Spector, Esq. (Spector & Wolfe, L.L.C.), of Kirkwood,
Missouri, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. PULCINI, Administrative Law Judge. This case
was tried in St. Louis, Missouri, on December 12, 2001. On
May 7, 1998, Teamsters Local Union No. 682, affiliated with
International Brotherhood of Teamsters, AFL–CIO (Union),
filed a petition seeking an election in an appropriate bargaining
unit of employees employed by Superior of Missouri, Inc. (Re-
spondent). This petition resulted in a Stipulated Election
Agreement approved by the Regional Director on May 19,
1998. The election, scheduled for June 19, 1998, did not hap-
pen due to alleged Board agent misconduct. On June 26, 1998,
the Board held the rescheduled election. It resulted in the Un-
ion prevailing. The Company then filed timely objections to
the conduct of the election.
The Regional Director conducted an inquiry into the objec-
tions and issued a report recommending overruling them and
certifying the Union as the collective-bargaining representative
of Respondent’s employees. The Board affirmed the Regional
Director’s recommendations and issued a Certification of Rep-
resentative. Respondent refused to bargain in further contest of
the issues raised by its election objections. A complaint issued
followed by General Counsel filing a Motion for Summary
Judgment on February 26, 1999. The Board granted the Mo-
tion for Summary Judgment on March 31, 1999.
10 We have revised the judge’s recommended Order accordingly.
Member Cowen would adopt the judge’s Order overruling the Respon-
dent’s objections and would issue a Certification of Representative.
Unlike his colleagues, however, he would not reaffirm the Board’s
original Decision and Order finding that the Respondent violated Sec.
8(a)(5) and (1) of the Act by refusing to bargain with the Union at a
time when, as subsequently found by the Eighth Circuit, the Board had
erroneously certified the Union as the bargaining representative of the
Respondent’s employees without affording the Respondent an eviden-
tiary hearing on its election objections. See NLRB v. Superior of Mis-
souri, Inc., 233 F.3d 547 (8th Cir. 2000), denying enf. 327 NLRB 1208
(1999).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572
The Board petitioned the Eighth Circuit Court of Appeals
(the court) for enforcement of the issued Decision and Order.
On November 7, 2000, the court remanded the matter to the
Board for an evidentiary hearing on the three objections in the
underlying representation case. The Board then remanded the
case to the Regional Director to conduct the hearing held before
me on December 12, 2001.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in trash hauling
and recycling at its facility in St. Louis, Missouri, where it an-
nually ships to points directly outside of the State of Missouri
goods valued in excess of $50,000. Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ISSUES
Objection 1. Whether the Board agent assigned to the elec-
tion engaged in misconduct that interfered with the laboratory
conditions for running an election.
Objection 2. Whether the rescheduling of the election to the
following week of June 26, 1998, disenfranchised voters in
some fashion in the context of the Board agent alleged miscon-
duct.
Objection 3. Whether a union representative promised dues
waivers to those employees who voted in favor of the Union.
III. FACTS
Respondent is a trash hauling business that does some recy-
cling from North and South St. Louis, Missouri locations. In
early 1998, the Union began an organizational campaign among
the drivers and helpers of the Respondent. Respondent replied
with a countercampaign consisting of meetings with employ-
ees. It held these at the North location, making its case against
unionization. This countercampaign, in no way, stepped be-
yond the bounds of appropriate and lawful conduct. On May
19, 1998, the parties entered a Stipulated Election Agreement,
approved by the Regional Director for Region 14 that same
day. The agreement provided for the election on June 19, 1998,
from 6 to 8 a.m., at the employer’s North facility in a bargain-
ing unit of some 69 employees. By agreement, the Board agent
conducting the election was to meet the parties at the situs of
the election for a preelection conference at about 5:45 a.m. that
morning.
The Union’s preelection campaign also involved meeting
with groups of interested employees. Tim Ryan, union repre-
sentative, held these meetings.1 Some meetings took place at a
lounge in a shopping center called the Runaway Lounge, a
short drive from the North facility. Here, Ryan passed out au-

1 The number, dates, and time of these meetings are unclear in this
record.
thorization cards, retrieved them, and engaged in campaign
rhetoric. About 20 employees seemed to be the usual number
of attendees. During one of these preelection meetings, Ryan
told employees that no one employed when the Union is voted
in would have to pay the customary $300 initiation fee.2 Ryan
spoke to some of the attendees at this meeting a second time the
next day, and reiterated the Union’s promise to waive initiation
fees for all.3
On the day of the election, Field Examiner Matt Lomax, the
NLRB agent assigned to run the election, did not arrive on
time.4 This caused General Manager Kenneth L. McAfee to
release the employees to their runs. The nature of the trash
hauling business involves schedules, according to the Respon-
dent. Thus, with the workday disrupted by the failure of the
election to begin on time, it decided to send the employees out
on their runs. Moreover, the parties agreed the employees
milled around in the confusion caused by the failed election
start, creating a negative dynamic, resolvable by releasing them
to work.5
Lomax called the parties some 50 minutes into the scheduled
election time. He spoke to McAfee. He explained what hap-
pened to him. He then asked McAfee to bring the employees
back in. McAfee refused.6 McAfee told his attorney what had
happened. He, in turn, told Union Agent Ryan. Ryan testified
this conversation took place some 8 feet away from a group of
about 20 employees still on site. The failure of the Board agent
to show immediately generated speculation and comment
among the waiting employees. What the parties refer to as the
“rumor” began to circulate that “Superior paid off the Labor
2 There are two conflicting versions of this event. Employees
Wilbert R. Harking and Joe Green testified Ryan told the employees
that the Union would waive its initiation fee for all employees. An-
other employee Sean Sontage arrived late for the meeting and testified
that he heard Ryan say that those employees who voted for the Union
would have their initiation fee waived. I credit Harking and Green’s
version of events, given the context of the meeting, and the admitted
late arrival of Sontage into the crowded and noisy atmosphere implicit
in lounges. Of these witnesses, Harking and Green had the better recol-
lection and impressed me in their respective testimony with their forth-
right and ingenuous demeanor. Sontage’s account, on the other hand,
had none of these attributes. He seemed unsure in his demeanor and
hesitant. His recitation of events had a processed and rehearsed quality
in which I can place no confidence in its accuracy.
3 After the meeting, employees Sean Sontage and Kevin Calcagno
approached Ryan and told him that employees who had not attended
might have questions. In apparent response to this, Ryan went to the
South facility the next day and met with three employees including
Sontage. Ryan spoke to them, telling them as he did the night before,
the Union would waive initiation fees for everyone if successful. Kevin
Calcagno never testified.
4 Lomax testified that a storm had “knocked out” the power in his
home resulting in a failure of his alarm to timely wake him. He did not
contact the parties until approximately 6:50 a.m., nearly 1 hour into the
scheduled time for the election’s start.
5 There is no disagreement that the unexplained failed election start
created general confusion and made the usual tense atmosphere of a
preelection setting even more so.
6 It is unclear where Lomax called from when he made his first con-
tact with the Employer and spoke to McAfee. Presumably, he was
enroute to the election site.
SUPERIOR OF MISSOURI, INC. 573
Board.”7 Others confirmed the reality of the rumor.8 Ryan
testified that he knew of the rumor and in response told the
employees that the Labor Board could not be “bought off” and
that the Board agent had not come because his alarm had failed
him. He assured the employees that the election would be run.
Employees Harking and Green’s testimony support Ryan’s
recollection. There is little reason in this record to doubt that
Ryan assured the assembled employees that the election would
happen and that the Board agent did not show because of cir-
cumstances beyond his control. I credit Ryan’s account as
confirmed by Harking and Green.
Board Agent Lomax called some 10 minutes after his first
call again to entreat McAfee to recall the employees to hold the
election. When McAfee refused a second time, Lomax went to
his office. From there, he spoke to Michael Linahan, Respon-
dent’s counsel and signer of the original election agreement.
This conversation took place sometime that morning. In it,
Lomax apologized for the morning’s events and suggested that
a new date be set for the election for the following week. Lina-
han told Lomax he would speak to his client and get back to
him. McAfee with Stephen Maule, Respondent’s onsite coun-
sel spoke to Ryan about this new election date. This conversa-
tion took place at the election site.
I draw a clear inference Linihan conferred with Maule result-
ing in the parties’ oral agreement, inasmuch as Linihan called
Lomax and told him the date was fine. Lomax told Linihan that
new election notices would be prepared and delivered by him,
and would serve as confirmation of the parties’ agreement to
the new date. Thus, he told Linihan, no new written election
agreement was necessary. Union Attorney Brian Spector told
Ryan that afternoon of the new date. Lomax presumably was
in touch with Spector as well. The new election agreement was
hand delivered by Agent Lomax to the Company that after-
noon. Respondent never raised any objection to the new date
or the new notice to anyone in the week that followed.
Three days later, the Respondent handed out a letter to the
employees that in pertinent part said,

As you all know, the National Labor Relations Board
election that was scheduled for last Friday did not take
place. This certainly was not due to any fault of the com-
pany and we apologize for any inconvenience this may
have caused you. The election has been reset for this Fri-
day, June 26, 1998. It will be conducted at the same time
and place for which the original election was scheduled.
Even though the election did not take, place timely as
it was originally scheduled, this issue remains important to
all of us. [Y]ou should not let this fact keep you from
coming in this Friday and voting. This still remains the
most important decision that you will ever make as a Su-
perior employee, and you owe it to yourself and to your
fellow employees to vote in this election. The election
will, as you know, be decided by a majority of those peo-
ple who actually show up and vote, so it is important that
7 No one could identify the source of the rumor or the extent of its
mongering afterwards.
8 Former employee Melissa Seay, employee Harking, and Union
Agent Ryan confirmed the rumor’s circulation.
every person cast a ballot. The final decision should truly
reflect the opinion of all Superior employees.

This letter closed by saying,

Again, we apologize for the disruption and inconven-
ience which many of you suffered last Friday because the
National Labor Relations Board did not show up for the
election. There was no excuse for the election being de-
layed and all of us certainly wanted to get this issue behind
us. Unfortunately, this delay and inconvenience were
simply beyond our control. I do hope however, that you
will take the time and effort to vote this Friday on this is-
sue that is so vitally important to you, your job, and your
future.

The Respondent did not post anything at the facility besides
the notice. The Board and the Union did nothing to address the
issues of the failed election. On June 26, 1998, the Board held
the election without incident. Of the 69 eligible employees, 63
voted. There were 41 votes in favor of the Union and 20
against it. There were two challenged ballots.
IV. DISCUSSION AND ANALYSIS
A. The Failed First Election—Board Agent Misconduct
and the Alleged Unilateral Reschedule of the
Second Election—Objection 1
The Respondent argues the Board agent’s failure to appear at
the scheduled time disenfranchised voters. It cites a number of
cases in support of this premise. See B&B Better Baked Foods,
Inc., 208 NLRB 493 (1974); Nyack Hospital, 238 NLRB 257
(1978); Kerona Plastics Extrusion Co., 196 NLRB 1120
(1972); and Wolverine Dispatch, 321 NLRB 796 (1996). In
these cases, the Board agent arrived late, or closed the polls
early or temporarily and unexpectedly halted polling during the
election time. In these cases, there was a question as to the
decisiveness of the vote for one reason or another. There also
was only one single election in question. This case involves
none of these circumstances. No election happened on June 19,
1998. Yet, Respondent alleges that the events of June 19, 1998,
carried over into the rescheduled election of the next week, as if
they are a single event. An analytic framework to address the
issue here was set out by the Board in Glass Depot, Inc., 318
NLRB 766 (1995). There, the Board held “in deciding whether
an act of nature or other unexpected event constitutes “extraor-
dinary circumstances” justifying a new election we shall exam-
ine both the event itself and whether it resulted in a situation
where less than a representative complement of employees
voted in the election.”9
The logic of Glass Depot precisely applies to this case. The
failed election on June 19, 1998, served as the predicate for the
conduct of the second election and the resulting objections.
Why the Board agent failed to arrive on June 19 1998, to run
the election then is especially relevant if his failure to appear
was inadvertent and/or beyond his control. I find Lomax’s
9 In Glass Depot, a snowstorm prevented 4 out of a possible 19 em-
ployees from voting. The Board found that a representative comple-
ment of the voters was able to vote. It upheld the election results.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574
description of the circumstances surrounding his failure to
timely appear credible and more than qualifying as an “unex-
pected event” and an “extraordinary circumstance” as contem-
plated by Glass Depot. Thus, how the parties dealt with this
becomes the next focus of my review.
The Respondent argues that the Regional Director erred in
unilaterally directing a second election thereby destroying the
laboratory conditions of that. I do not agree. First, the facts of
this matter do not support any conclusion that a unilateral act
happened. Respondent orally agreed to the June 26 date under
clear advice of counsel. There is not a scintilla of evidence to
demonstrate any hesitation in this regard. Indeed, the Respon-
dent’s letter to employees, above, emphasizes the importance of
the election and decries the delay of June 19. Second, it had
options available to it on June 19, 1998, if it was concerned
about possible disenfranchisement of voters. For example, it
could have requested a new prehearing conference to execute
another written election agreement with a new date, place, and
time. It also could have brought to the Region’s attention any
or all of the concerns it raised later in its objections.10 It did
none of these things. Rather, I infer Respondent made a con-
sidered decision to agree to the new date, while holding its
tongue on other concerns it had. Essentially, Respondent bided
its time to see what the results were, bankrolling its possible
objections. In choosing this gambit, Respondent ran a risk that
the election results might be so dispositive as to devalue the
currency of its objections. This is precisely what happened. I
conclude that the laboratory conditions necessary for a valid
election were more than met in the election of June 26, 1998. I
find this in large measure because of the Respondent’s consid-
ered participation and the opportunity it had to address its con-
cerns if it wanted to.
Moreover, Respondent produced no objective facts to prove
voter disenfranchisement caused by an improperly run election
and none to justify setting aside its results. In the end, the re-
sults of this election define its’ validity. On June 26, 1998, 63
of 69 eligible voters exercised their franchise, reflecting over a
90 percent turnout, which by any measurement standard quali-
fies as a “representative complement.” Voters cast 41 ballots in
favor of the Union and 20 for the Employer. There were two
challenged ballots. Why the six nonvoting employees chose
this as their option is unknown. However, given the circum-
stances of this case, I find it unlikely that lack of notice about
the election was a reason. Most importantly, the most salient
point is these six votes do not materially affect the outcome of
the election. They are not dispositive. This fact above all others
controls this question. See Pea Ridge Iron Ore Co., 335 NLRB
161 (2001), and cases cited therein.
B. The Rumor Surrounding the Failed Election—Objection 2
The Respondent alleges that the spontaneous rumor of Agent
Lomax’s failure to arrive disrupted the laboratory conditions
for the election and affecting its outcome.11 It cites Midwest

10 The evidence submitted makes it clear that the Employer was
aware of all the facts it raised as objections well before the election.
11 Employee Debbie Crossen testified to the rumor as circulating
among at least two other employees confirming what Ryan and Harking
testified to.
Canvas Corp., 326 NLRB 58 (1986), in support of this. Mid-
west holds that elections may be set aside where (1) “the votes
of those possibly excluded could have been determinative; (2)
the record also showed accompanying circumstances that sug-
gested that the vote may have been affected by the Board
agents late opening or early closing of the polls; or (3) it was
impossible to determine whether such irregularity affected the
outcome of the election,” citing Wolverine Dispatch, Inc., 321
NLRB 796 (1996), and Celotex Corp., 266 NLRB 802, 803
(1983).
Midwest, however, differs significantly from the present case
that has a hiatus of 1 week between the “rumor” and the elec-
tion. Here, as well, there is no evidence to show that the “ru-
mor” survived beyond June 19, 1998. Further, each party here
acted to dispel the impact of the “rumor.” Union Agent Ryan
immediately addressed the very group that probably spawned
the “rumor” to correct its erroneous premise. A few days later,
Respondent handed out its letter of explanation about the failed
election.12
These two events, in concert, measured by election turnout,
establish that the impact of the “rumor” was negligible at best.
The June 26, 1998 election is without incident, with decisive
results. In Alladdin Plastics, Inc., 182 NLRB 64 (1970), a vir-
tually identical case, the Board refused to set aside an election,
wherein, as here, a failed election attempt resulted in the same
sort of rumor of a buyout of the Board. That rumor as here,
was unconnected to any actions of the Union involved. The
Board said that the existence of a rumor does not afford ade-
quate ground for setting aside an election especially where the
Employer involved had opportunity to respond to the rumor. I
find this case falls squarely within the ambit of this logic. The
June 19, 1998 “ rumor” is too ephemeral an event to justify
setting aside this election. It could only have substance if its
existence could objectively establish it materially affected the
votes cast.
C. The Alleged Unlawful Statements of
Union Agent Ryan—Objection 3
Respondent bases the allegation of unlawful comments by
Ryan on the single event at the Runaway Lounge, as described
above. Sontage was not entirely reliable as a witness to the
alleged remarks, as I have said. However, even if this were not
the case, the facts still do not support Respondent’s contention.
Ryan had separate discussions with Sontage and other employ-
ees shortly after the lounge meeting.13 If there was a miscon-
ception, he corrected it. It is a permissible act for a Union to
waive its initiation fees for all employees in the bargaining unit.
See Savair, 414 U.S. 270 (1973). Respondent cites Demming
Division Crane Co., 225 NLRB 657 (1976), in support of its
contention that the remarks Sontage attributed to Ryan com-
promised the free election choice of the employees. Dem-
ming’s facts have little to do with those of this case. In Dem-
12 Curiously, this letter failed to address these concerns. In fact, it
gave no details about the reasons beyond placing responsibility on the
Board. The Employer did exculpate itself by denying any involvement
in the events of that morning.
13 Sontage did not dispute that Ryan explained the issue of initiation
fee waiver.
SUPERIOR OF MISSOURI, INC. 575
ming, the union mail distributed a document waiving fees for
those who had signed authorization cards. Here, there only
exists the single alleged remark reported by Sontage, an unreli-
able informant, with no evidence that his misunderstanding
went beyond him for the single day it existed. I find these facts
too tenuous to conclude that there was any impact on voters.14
See also Molded Acoustical Products v. NLRB, 815 F.2d 934,
937 (3d Cir. 1987), cert. denied 484 U.S. 925 (1987).

14 There is also serious illogic to Sontage’s account. There is no way
Ryan could know with certainty who voted for the Union or not. Thus,
there is no possible way the Union could have acted on his alleged
remark even if it wanted to. It is unlikely for anyone to make such a
hollow promise in the heat of an election campaign. This gives further
support to the finding that Sontage misunderstood what Ryan said.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
Objections 1, 2, and 3 are overruled in their entirety. A Cer-
tification of Representative should issue as appropriate.
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.