Virginia Concrete Corp.

National Labor Relations Board - Board Decisions

May 9, 2003

338 N.L.R.B. 1182 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182
Virginia Concrete Corporation, Inc. and Andres
Delgado, Petitioner, and International Brother-
hood of Teamsters, Local Union 639, AFL–CIO.
Case 5–RD–1253
May 9, 2003
SUPPLEMENTAL DECISION AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held August 15, 2001, and the administrative law judge’s
report concerning disposition of them. The election was
conducted pursuant to a Decision and Direction of Sec-
ond Election. 334 NLRB 796 (2001). The tally of bal-
lots shows 81 for and 97 against the Union, with 5 chal-
lenged ballots, an insufficient number to affect the re-
sults.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has adopted the judge’s findings
and recommendations only to the extent consistent with
this Supplemental Decision and Certification of Results
of Election. As explained below, we find that the judge
erred in sustaining the Union’s objections and recom-
mending that the election be set aside. We therefore
overrule the objections and certify the results of the elec-
tion.
I. FACTS
For a number of years, the Union has represented the
Employer’s drivers. On July 25, 2000, a decertification
petition was filed. On September 30, 2000, the parties’
collective-bargaining agreement expired. In the fall of
2000, the parties negotiated, but were unable to reach, a
new agreement. Among other things, their negotiations
included a discussion of a wage increase.
The first decertification election was held on Decem-
ber 20, 2000. The Union lost the vote and filed objec-
tions, some of which were set for hearing.
In March 2001,1 while the Union’s objections were
pending, the Employer unilaterally announced and im-
plemented a 50-cent wage increase—the same amount
the Employer had offered to the Union during bargaining
in fall 2000—retroactive to October 2000. On April 10,
the Union filed an unfair labor practice charge, alleging
in part that the wage increase violated Section 8(a)(1).
The Union withdrew this charge in February 2002.
On April 27, the Employer sent a letter to employees
notifying them, among other things, of the Union’s unfair

1 All dates are in 2001 unless otherwise specified.
labor practice charge. The letter erroneously stated that
the charge would result in employees losing the pay in-
crease, and characterized the Union’s charge as an “at-
tempt[ ] to take away” the increase.
On July 2, the Board sustained two of the Union’s ob-
jections to the December 2000 election and ordered a
second election. See Virginia Concrete Corp., 334
NLRB 796 (2001). On July 5, the Employer distributed
a memorandum notifying employees of the Board’s deci-
sion and urging them to vote no in the second election.
The memorandum also stated that “[o]n a separate mat-
ter—your [50-cent] per hour pay raise—we are continu-
ing to fight on your behalf to keep the money. The un-
ion, however, is still arguing to the Government that the
pay raise should be taken away from you.”
On July 17, the Union filed an unfair labor practice
charge alleging that the Employer violated Section
8(a)(1) by telling employees that the Union had filed
charges to take away the pay increase. The Union with-
drew this charge shortly before the second election, and
there are no other unfair labor practice charges before the
Board.
The second election was held on August 15. On Au-
gust 14, within 24 hours before the election, the Em-
ployer sent a brief, electronic “Vote No” message that
appeared on small text messaging screens in the unit em-
ployees’ trucks.
The Union lost the August 15 election and filed objec-
tions. After a hearing, the judge recommended sustain-
ing four of the objections and ordering a third election.
In issuing his report, however, the judge failed to con-
sider the Employer’s posthearing brief, which was timely
filed but never received by the judge. The Employer
excepted, among other things, to the judge’s failure to
consider its brief. The Employer argued that a hearing de
novo before a different judge or hearing officer was nec-
essary to remedy the judge’s failure to consider the brief.
In an unpublished Order issued June 26, 2002, the Board
denied the Employer’s request for a hearing de novo, but
remanded the case to the judge to consider the Em-
ployer’s brief and issue a supplemental report.
In his supplemental report, the judge addressed the ar-
guments in the Employer’s brief and reached the same
conclusions reached in his original report: he recom-
mended sustaining four objections, overruling two oth-
ers, and ordering a third election. Specifically, the judge
found that the Employer interfered with the election by
ignoring and bypassing the Union in granting a 50-cent
wage increase (Objection 1), failing to recognize the Un-
ion as the exclusive bargaining representative (Objection
5), telling employees that the Union had filed charges to
take away their wage increase (Objection 2), and sending
338 NLRB No. 183
VIRGINIA CONCRETE CORP. 1183
the electronic “Vote No” message to employees’ trucks
within 24 hours before the election (Objection 4), which
the judge found amounted to a captive audience speech
in violation of Peerless Plywood Co., 107 NLRB 427
(1953).
The Employer filed exceptions, and the Union filed an
answering brief asking the Board to affirm the judge’s
findings. The Employer argues that the judge erred in
sustaining each of the objections. The Employer also
reiterates its argument, made prior to the remand, that the
Board should order a hearing de novo because the judge
did not consider the Employer’s posthearing brief before
issuing his initial report.
For the reasons set forth below, we deny the request
for a hearing de novo, but we agree with the Employer
that the judge erred in sustaining the Union’s Objections
1, 2, 4, and 5. Accordingly, we overrule the objections
and certify the results of the election.2
II. ANALYSIS
A. Employer’s Request for Hearing De Novo
The Employer argues that it is entitled to a hearing de
novo before a different judge or hearing officer, and that
remanding the case to the same judge was inadequate, in
part because the judge was biased.
We disagree. In our remand Order issued June 26,
2002, we denied the Employer’s request for a hearing de
novo. That ruling is now the law of the case. See, e.g.,
Technology Service Solutions, 332 NLRB 1096 fn. 3
(2000), order modified on reconsideration on other
grounds 334 NLRB 116 (2001). To the extent the Em-
ployer argues that the judge’s findings on remand reflect
bias, we have carefully reviewed the judge’s supplemen-
tal report, and we find no evidence that he prejudged the
case or that he demonstrated bias.
B. Objection 1: Ignoring and Bypassing The Union in
Granting Employees a 50-Cent Wage Increase
Objection 1 alleges that the Employer interfered with
the election by “[i]gnoring and bypassing the Union in
granting a [50-cent] an hour raise.” The Employer
granted the wage increase at a time when the Union’s
objections to the December 2000 election were pending.
The judge recommended sustaining the objection, relying
on Mike O’Connor Chevrolet, 209 NLRB 701 (1974),
enfd. denied 512 F.2d 684 (8th Cir. 1975). In that case,
the Board held that an employer acts “at its peril” in
making unilateral changes while objections to an initial
representation election are pending, because those

2 In the absence of exceptions, we adopt pro forma the judge’s rec-
ommendation to overrule Objections 3 and 12.
changes will violate Section 8(a)(5) if the election ulti-
mately results in certification of the Union. Id. at 703.
The Employer excepts. First, the Employer argues that
the Board must overrule Objection 1, because it is based
on conduct that was the subject of a withdrawn unfair
labor practice charge. Second, the Employer argues that
Mike O’Connor is inapplicable because it involved alle-
gations that an employer violated Section 8(a)(5). In the
present case, there are no pending unfair labor practice
charges. The Employer argues that instead of applying
Mike O’Connor, the Board should apply the standard
used in representation cases to evaluate preelection
grants of benefits that are alleged to be objectionable.
Under this standard, the Employer argues, the wage in-
crease is not objectionable.
We disagree with the Employer that the withdrawn un-
fair labor practice charge requires us to overrule this ob-
jection. We agree, however, that Mike O’Connor is in-
applicable and that the objection should be overruled on
its merits.
1. The withdrawn unfair labor practice charge
Prior to the second election, the Union filed a charge
alleging that the March wage increase violated Section
8(a)(1). The Union withdrew that charge in February
2002, about 6 months after the second election. Accord-
ing to the Employer, conduct that is the subject of a
withdrawn unfair labor practice charge cannot be the
basis for an objection. The Employer relies on Ellicott
Machine Corp., 54 NLRB 732 (1944), in which the
Board stated: “[W]here charges are withdrawn without
prejudice to facilitate the determination of a representa-
tion proceeding, we shall treat the withdrawal of the
charges without prejudice as an automatic waiver by the
petitioning union of the right to use the subject matter of
those charges as a basis for objections to the election.”
Id. at 735.3 For two reasons, we find that Ellicott does
not require us to overrule Objection 1.
First, Ellicott is distinguishable, because it addressed
the withdrawal of charges before an election. Here, the
Union did not withdraw the charge relating to Objection
1 until almost 6 months after the election. Therefore, the
charge was not withdrawn “to facilitate the determination
of a representation proceeding,” as in Ellicott.
Second, we find that Ellicott is inconsistent with cur-
rent Board law and practice. In Great Atlantic & Pacific
Tea Co., 101 NLRB 1118, 1119–1120 (1952), the Board
overruled an entire line of cases applying the type of
3 The Board has never cited Ellicott for this principle. An adminis-
trative law judge applied Ellicott in Redway Carriers, Inc., 274 NLRB
1359, 1367–1368, 1404–1405 (1985), but the Board did not pass on
that issue. See Redway, supra at fn. 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184
waiver analysis used in Ellicott. Specifically, the Board
stated that it had “reconsidered the question whether and
when a party should be permitted to object to an election
on the basis of conduct of which it had knowledge before
the election, if it neither filed charges nor otherwise pro-
tested such conduct to the Board until after the election
was over.” The Board announced that it would no longer
apply a “rule of estoppel.” Instead, in determining
whether to set aside the election, the Board would con-
sider any substantial interference during the critical pre-
election period, whether or not unfair labor practice
charges were filed. The Board plainly stated that the
absence of unfair labor practice charges regarding pre-
election conduct would not operate as a waiver of a
party’s right to object to that conduct. Id. at 1120–1121.
The Board explicitly overruled several cases that had
found such a waiver, and stated that it was also overrul-
ing “other cases to the same effect.” Id. at fn. 6. Al-
though Ellicott was not one of the cases listed as being
overruled, we consider it a case “to the same effect.” We
now explicitly overrule Ellicott and hold that the with-
drawal of an unfair labor practice charge does not operate
as a waiver of party’s right to file objections based on the
same conduct.4
2. The merits of Objection 1
The Employer argues, and we agree, that the judge
erred in relying on Mike O’Connor, supra, to sustain Ob-
jection 1. Mike O’Connor involved allegations that an
employer violated Section 8(a)(5). In the present case,
there is no allegation before the Board that the Employer
violated Section 8(a)(5). The only issue is whether the
Employer’s preelection wage increase interfered with the
election. We have found no prior decisions applying
Mike O’Connor in a representation case, like this one, in
which there is no 8(a)(5) violation at issue. Therefore,
Mike O’Connor does not provide a basis for sustaining
Objection 1 in this case.5

4 Our decision here is consistent with the principle that even the
dismissal of an unfair labor practice charge does not require the pro
forma overruling of an objection based on the same conduct. See ADIA
Personnel Services, 322 NLRB 994 fn. 2 (1997).
5 In addition, Mike O’Connor involved an initial representation elec-
tion. The Board has declined to extend the Mike O’Connor “act at your
own peril” rule to decertification cases. See W.A. Krueger Co., 299
NLRB 914, 915 (1990). In Krueger, the Board held that where a union
loses a decertification election, the employer violates Sec. 8(a)(5) by
making unilateral changes while the union’s objections to the election
are pending and before the certification of results issues. See Id. Like
Mike O’Connor, however, Krueger involved allegations that an em-
ployer violated Sec. 8(a)(5). As with Mike O’Connor, we have found
no prior decisions applying Krueger in a representation case, like this
one, in which no 8(a)(5) violation is at issue.
Chairman Battista does not necessarily agree with the holding of
Krueger (a unilateral change after a union loss of a decertification
We agree with the Employer that the wage increase
should be evaluated under the principles used by the
Board to determine, in representation cases, if a pre-
election grant of benefits is objectionable. Under those
principles we find, contrary to our dissenting colleague,
that the wage increase was not objectionable.
To determine if a grant of benefits is objectionable, the
Board examines the size of the benefit conferred, the
number of employees receiving it, the timing of the bene-
fit, and how employees reasonably would view the pur-
pose of the benefit. Star, Inc., 337 NLRB 962, 962
(2002); B&D Plastics, Inc., 302 NLRB 245 (1991).
“The Board will infer that an announcement or grant of
benefits during the critical period is coercive, but the
employer may rebut the inference by establishing an ex-
planation other than the pending election for the timing
of the announcement or bestowal of the benefit.” Star,
supra, slip op. at 1.
In the present case, the grant of benefit occurred dur-
ing the critical period and thus raises an inference of co-
ercive conduct. For the reasons set forth below, how-
ever, we find that the Employer has rebutted this infer-
ence by “establishing an explanation other than the pend-
ing election” for the timing of the wage increase.
Significantly, the wage increase at issue is consistent
with the Employer’s past practice. In fact, every year
since 1994, the Employer granted its employees a unit-
wide wage increase. Although the amount of the in-
crease varied slightly from year to year, it was always
within the range of 25 to 50 cents an hour. Furthermore,
and consistent with this practice, the Employer proposed
a 50-cent wage increase to the Union during the parties’
2000 negotiations.6
The timing of the increase is also consistent with past
practice. Employees’ wage increases for 1994 through

election is unlawful under Sec. 8(a)(5), even if the loss is thereafter
certified as valid).
To the extent our dissenting colleague relies on Krueger and sug-
gests that the wage increase could be found objectionable because it
was granted without giving the Union notice and opportunity to bar-
gain, the gravamen of his finding is that the wage increase violated Sec.
8(a)(5). Contrary to our colleague, and for the reasons stated in our
discussion of Objection 5 below, we view such a finding as contrary to
Texas Meat Packers, 130 NLRB 279, 279–280 (1961).
6 In arguing that the Employer’s wage increase was inconsistent with
its past practice, our dissenting colleague focuses on the fact that the
amount of the increase (i.e., 50 cents) was twice as large as the amount
of the increase given in the prior 2 years, and that it had been 6 years
since the wage increase had been 50 cents. Contrary to our colleague,
we find that the Employer’s practice is shown not by focusing on 1 or 2
particular years or on particular amounts, but rather by considering the
overall pattern and range over the longer period of several years. We
find that, when considered in the context of the overall pattern and
range over this longer period, the wage increase at issue is clearly con-
sistent with the Employer’s past practice.
VIRGINIA CONCRETE CORP. 1185
1999 all took effect in the month of October, even
though, like the wage increase at issue here, they were
not necessarily announced in October. In addition, the
Employer announced the wage increase in March (retro-
active to the prior October), but the second election did
not take place until August. Therefore, the wage increase
was not close in time to the election.
The wage increase was given to all unit employees.
We do not find this factor significant, however, because
it is consistent with the Employer’s past practice of unit-
wide wage increases.
Finally, given the Employer’s past practice, the long
period of time between the wage increase and the second
election, and the fact that the wage increase was the same
amount proposed to the Union, we find that employees
would not reasonably view the purpose of the wage in-
crease as an attempt to influence their votes in the decer-
tification election.
Therefore, we find that the Employer has successfully
rebutted the inference that the wage increase was coer-
cive by showing that past practice explains the timing
and amount of the wage increase.
In finding the wage increase objectionable, our
dissenting colleague relies heavily on campaign literature
distributed by the Employer on April 27 and July 5. He
finds that this literature would lead employees to view
the wage increase as an attempt to dissuade them from
voting for the Union. In particular, he notes that the lit-
erature stated that the Union was attempting to take away
the wage increase. He also argues that the literature call-
ing attention to the wage increase was distributed closer
to the election. Contrary to our colleague, we do not find
that this literature makes the wage increase objection-
able. The literature was distributed well in advance of
the election, and the Union had ample opportunity to
respond. The Union did respond, distributing its own
literature stating that the Employer’s president “is lying
when he says the union is trying to deprive you of the
$.50. The union is demanding that the . . . $.50 be put in
your wages.” Therefore, neither the timing nor the con-
tent of the Employer’s literature undermines our conclu-
sion that the wage increase was not objectionable.
Our colleague faults the Employer for referring to the
wage increase as the “fruit” of the first election (which
was lost by the Union). However, it was the “fruit” only
in the sense that the Employer thought that, with the Un-
ion loss, the Employer could act unilaterally. Although
that may have been wrong under current Board law, i.e.,
a violation of Section 8(a)(5), the Board cannot consider
that unfair labor practice matter in the representation
case. Accordingly, we overrule Objection 1.7
C. Objection 5: Failing to Recognize the Union as
the Exclusive Bargaining Representative
After the first decertification election in December
2000, the Employer stopped bargaining with the Union,
relying on the election results as evidence that the Union
lacked majority support. Objection 5 alleges that the
Employer interfered with the second election by failing
to recognize the Union as the exclusive bargaining repre-
sentative. The judge sustained this objection. In doing
so, he relied in part on the unilateral 50-cent raise in
March. He also relied on the Employer’s refusal to rec-
ognize and bargain with the Union after the first election.
We reverse. The gravamen of the Union’s objection is
that the Employer violated Section 8(a)(5) by failing to
recognize and bargain with the Union. The Board has
refused to consider election objections where the
gravamen of the objection is an unfair labor practice, and
sustaining the objection would require a finding that the
alleged objectionable conduct violated the Act. See
Texas Meat Packers, 130 NLRB 279, 279–280 (1961).
In Texas Meat Packers, the Union alleged that the em-
ployer interfered with the election by discriminatorily
laying off union supporters before the election. The
Board found that the “gravamen of this contention” was
that the employer violated Section 8(a)(3). That is,
whether the layoffs interfered with free choice depended
on whether they were discriminatorily motivated, and
therefore depended on whether they violated Section
8(a)(3). Therefore, because there were no 8(a)(3)
charges before it, the Board found that the alleged dis-
criminatory layoffs could not be considered as a basis for
setting aside the election. Id. at 279–280. Specifically,
the Board stated:

It is Board practice to set aside elections because of
substantial interference therewith arising from conduct
which, in an unfair labor practice proceeding, would
also be held violative of the Act. But, in such cases, the
interference with the election is found to exist without
regard to whether the interfering conduct would be
deemed an unfair labor practice in a complaint case.

7 Member Schaumber notes that the Employer’s campaign literature
is the subject of a separate objection (Objection 2, discussed in sec.
II,D, below). Specifically, the Union alleged that the Employer inter-
fered with the election by stating in campaign literature that the Union
had filed charges to “take away” the wage increase. We overrule that
objection below, based on Board precedent holding that elections will
not be set aside on the basis of misleading campaign statements. See
sec. II,D. For this additional reason, Member Schaumber finds that the
Employer’s campaign literature does not provide a basis for sustaining
Objection 1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1186
For the effect of preelection conduct on an election is
not tested by the same criteria as conduct alleged by a
complaint to violate the Act. On the other hand, where
. . . the conduct which is alleged to have interfered with
an election could only be held to be such interference
upon an initial finding that an unfair labor practice
was committed, it is Board policy . . . not to inquire into
such matters in the guise of considering objections to
an election. In such cases, the election process may be
protected by the timely filing of charges with respect to
the conduct in question.

Id. at 280 (emphasis added).8 Although the gravamen
of the objection in Texas Meat Packers was an 8(a)(3)
violation, the rationale of Texas Meat Packers has also
been applied in cases, like this one, in which the
gravamen of the allegation is an 8(a)(5) violation.9
In the present case, the judge found that the Em-
ployer’s refusal to recognize and bargain with the Union
after the first election was objectionable. The refusal to
recognize and bargain would tend to interfere with the
election, however, only if it violated Section 8(a)(5).
Because there are no unfair labor practice charges before
us, we are precluded from considering whether the Em-
ployer’s conduct violated Section 8(a)(5).
Moreover, the judge relied heavily on the Employer’s
unilateral wage increase as evidence supporting Objec-
tion 5. We have found above, however, that the wage
increase was not objectionable. Therefore, it cannot pro-
vide a basis for sustaining Objection 5. Accordingly, we
reverse the judge and overrule Objection 5.
D. Objection 2: Telling Employees the Union Filed
Charges to Take Away Their Wage Increase
As explained above, in April 2001, the Union filed un-
fair labor practice charges alleging that the 50-cent wage
increase violated Section 8(a)(1). In campaign literature,

8 As explained in sec. II,B,1, above, the failure to file an unfair labor
practice charge regarding preelection conduct, or the withdrawal of
such a charge, does not constitute a waiver of the party’s right to allege
that the conduct was objectionable. Even if there are no unfair labor
practice charges, the Board can still find the conduct objectionable,
unless it is the type of conduct addressed in Texas Meat Packers: con-
duct that can only be held to interfere with the election upon an initial
finding that an unfair labor practice was committed.
9 See National League of Professional Baseball Clubs, 330 NLRB
670, 677 (2000) (because no unfair labor practice allegations were
before him, hearing officer declined to analyze whether alleged unilat-
eral changes were objectionable conduct, except to the extent that those
changes expressed support for one union or disparaged another); Fibre-
board Corp., 283 NLRB 1093, 1100 (1987) (because no 8(a)(5) viola-
tion was alleged, judge rejected union’s argument that unilateral elimi-
nation of jobs precluded employer from challenging those employees’
election ballots; “[a]bsent any contention in the unfair labor practice
proceeding that Respondent’s elimination of various jobs was violative
of the Act, such job elimination must be presumed to be lawful”).
the Employer stated that the Union’s charge would result
in employees losing the wage increase, and characterized
the charge as an “attempt[ ] to take away” the increase.
Objection 2 alleges that the Employer interfered with the
election by telling employees that the Union had filed
charges to take away the wage increase.
The judge sustained the objection. He reasoned that
the Employer’s statements were incorrect, because if a
wage increase is found unlawful, the Board does not or-
der rescission of the increase unless the union requests it.
The judge acknowledged that under well-established
precedent, the Board does not set aside elections on the
basis of false or misleading campaign statements. See
Midland National Life Insurance Co., 263 NLRB 127,
133 (1982). Nevertheless, the judge relied on the princi-
ple that “Board intervention will continue to occur in
instances where a party has engaged in such deceptive
campaign practices as improperly involving the Board
and its processes . . . .” Shopping Kart Food Market, 228
NLRB 1311, 1313 (1977). The judge found that the Em-
ployer’s statements “improperly involved the Board and
its processes,” because the Employer misstated the rem-
edy the Board would order if it found the wage increase
unlawful.
We reverse. The Board clearly stated in Midland that
it will not “probe into the truth or falsity of the parties’
campaign statements” and “will not set elections aside on
the basis of misleading campaign statements.” 263
NLRB at 133. Further, we do not agree that the Em-
ployer's campaign propaganda “improperly involv[ed]
the Board and its processes.” At most, the Employer
misstated Board law and possible future Board action.
Mere misstatements of law or Board actions are not ob-
jectionable under Midland. See, e.g., John W. Galbreath
& Co., 288 NLRB 876, 877 (1988) (“the mere fact that a
party makes an untrue statement, whether of law or fact,
is not grounds for setting aside an election”); Blue Grass
Industries, 287 NLRB 274, 276 (1987) (employer erro-
neously stated that Board law prevented him from debat-
ing with the union; statement was not objectionable be-
cause “mischaracterizations of Board actions are viewed
the same as other misrepresentations that we find nonob-
jectionable”); Riveredge Hospital, 264 NLRB 1094,
1095 (1982) (leaflet erroneously stating that the Board
had issued a complaint against the employer was not
objectionable; “we see no sound reason why misrepre-
sentations of Board actions should be on their face objec-
tionable or be treated differently than other misrepresen-
tations”) (footnote omitted). Under Midland, therefore,
we overrule Objection 2.
VIRGINIA CONCRETE CORP. 1187
E. Objection 4: Alleged Captive Audience Speech
Within 24 Hours Before Election
Objection 4 alleges that the Employer interfered with
the election by sending a brief electronic “Vote No” mes-
sage, within 24 hours before the election, to the “mobile
data units” (MDUs) in employees' trucks. An MDU con-
sists of a modem box and a 2-by-4 inch screen mounted
on the truck’s dashboard. The Employer used the MDU
system to send text messages to its drivers, including the
preelection message at issue here.
The judge found that the Employer’s message violated
the rule in Peerless Plywood, 107 NLRB 427, 429
(1953), which prohibits employers and unions “from
making election speeches on company time to massed
assemblies of employees within 24 hours before the
scheduled time for conducting an election.” In addition
to election speeches to “massed assemblies of employ-
ees,” the Board has found that prolonged sound truck
broadcasts of speeches and partisan songs are objection-
able under Peerless, where the broadcasts were heard in
the plant by employees at work. See Purolite, 330
NLRB 37, 39–40 (1999); United States Gypsum Co., 115
NLRB 734, 734–735 (1956) (emphasizing that although
the employees subjected to the broadcast were not in a
“massed assembly,” they “were not isolated, but were
working with or near each other”). Relying on the sound
truck cases, the judge found that the Employer’s message
violated Peerless Plywood because the message was un-
invited. He found that although drivers could delete the
message or scroll past it, in doing so they would see it,
and therefore the Employer would succeed in communi-
cating its message. Therefore, the judge found that the
drivers became a captive audience under Peerless.
We disagree. In Peerless, the Board clarified that its
rule prohibiting captive audience speeches did not pro-
hibit circulating campaign literature or “any other legiti-
mate campaign propaganda or media.” 107 NLRB at
430; see also Pearson Education, Inc., 336 NLRB 979,
979 (2001) (“The Peerless Plywood rule . . . does not
apply to posters or other campaign literature.”). Consid-
ering the particular characteristics of the Employer’s
message, we find that it is more analogous to campaign
literature than to a campaign speech or sound truck
broadcast. The message was not audible. Although it
was uninvited, the drivers could delete or scroll past it if
they chose; they did not have to leave it on the screen
indefinitely. We do not find it persuasive that employees
would necessarily be exposed to the message in the proc-
ess of deleting or scrolling past it. The same can be said
of campaign posters, to which Peerless does not apply.
Moreover, the Employer sent its message to employees
in their trucks. The message was not delivered to
“massed assemblies of employees,” as in Peerless, or
even to employees “working with or near each other,” as
in United States Gypsum. Therefore, we overrule Objec-
tion 4.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for International Brotherhood of Teamsters,
Local Union 639, AFL–CIO, and that it is not the exclu-
sive representative of these bargaining unit employees.

MEMBER WALSH, dissenting in part.
I join my colleagues in overruling Ellicott Machine
Corp., 54 NLRB 732 (1944).1 I disagree, however, with
their overruling of Objection 1, which alleges that the
Employer interfered with the election by unilaterally
granting a 50-cent wage increase. I would sustain this
objection and order a third election. I would find it un-
necessary to pass on the Union’s other objections.
My colleagues analyze the Employer’s unilateral wage
increase under Board law governing preelection grants of
benefits. I am hesitant to apply the grant of benefit cases
here. The “general rule” of the Board’s leading grant of
benefit case is that an employer, “in deciding whether to
grant benefits while a representation election is pending,
should decide that question as he would if a union were
not in the picture.” Great Atlantic & Pacific Tea Co.,
166 NLRB 27, 29 fn. 1 (1967) (A & P), enfd. in part,
remanded in part 409 F.2d 296 (5th Cir. 1969). That rule
applies well in an initial representation election situation
where there is no incumbent union. However, it does not
neatly fit the facts of this case, in which the Employer
unilaterally granted a wage increase while objections to a
decertification election were pending. At that time, the
Employer was under a statutory duty to bargain with the
Union before making changes in terms and conditions of
employment and therefore could not legally act “as he
would if a union were not in the picture.”
Nevertheless, even applying A & P and its progeny, I
would find that the wage increase in the present case was
an objectionable grant of benefits. To determine if a
grant of benefits is objectionable, the Board examines the
size of the benefit conferred, the number of employees
receiving it, the timing of the benefit, and how employ-
ees reasonably would view the purpose of the benefit.
Star, Inc., 337 NLRB 962, 962 (2002); B&D Plastics,
Inc., 302 NLRB 245 (1991). “The Board will infer that
an announcement or grant of benefits during the critical
period is coercive, but the employer may rebut the infer-
ence by establishing an explanation other than the pend-

1 I also join them in denying the Employer’s request for a hearing de
novo.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1188
ing election for the timing of the announcement or the
bestowal of the benefit.” Star, supra, slip op. at 1.
Under this standard, I agree with my colleagues that an
inference is warranted that the wage increase was coer-
cive. The wage increase was granted during the critical
period, and that alone is sufficient to raise an inference of
coercive conduct. Other factors reinforce that inference.
First, the amount of the wage increase was twice as
large as the increases given during the past 2 years. The
record shows only one prior 50-cent increase, which was
given in 1994, 6 years earlier.2
Second, although the March 2001 wage increase at is-
sue here was announced several months before the elec-
tion, the Employer called attention to it in campaign lit-
erature distributed closer to the election.
Third, all unit employees received the wage increase.
Finally, employees would reasonably view the purpose
of the raise as an attempt to dissuade them from support-
ing the Union, because the Employer repeatedly linked
the raise to the Union and the ongoing decertification
proceedings. Specifically, when it announced the raise,
the Employer “predicted the union would fight to prevent
you from getting this money.” Later, in a letter to em-
ployees, the Employer noted that 3 months had passed
since the decertification election, and that the Union’s
objections were now before the Board. The Employer
emphasized that the Union had filed charges to “take
away” the wage increase, and asked:

Why would you want a representative who files legal
actions to take away your pay increase? It is certain
the union will use every possible legal maneuver to
prevent you from enjoying the fruits of your free choice
in the election.

That is, the Employer suggested that the raise was a
“fruit” of the first decertification election, which the Un-
ion lost.3 Furthermore, on July 5, 2001, the Employer

2 My colleagues focus on the “overall pattern and range” of raises
over the last 6 years, from 1994 through 1999. Because these past
raises were within the range of 25 to 50 cents, my colleagues do not
find it significant that employees had not received a 50-cent raise since
1994. However, the “overall pattern and range” of the raises shows that
from 1994 through 1999, the amount of the annual raise decreased
almost every year—from 50 cents in 1994 to 25 cents in 1998 and
1999. In 2000, the year at issue here, the raise not only increased, but
doubled.
3 My colleagues state that the raise was a “fruit” of the election only
in the sense that the Employer thought it could act unilaterally, because
the Union had lost the election. Even under this view, I do not agree
that the raise was unobjectionable.
My colleagues appear to concede that under Board law, the Em-
ployer’s position that it could act unilaterally was incorrect, and (if an
8(a)(5) charge had been filed) the raise may have been found unlawful.
Nevertheless, my colleagues conclude that the Board cannot consider
distributed another memorandum to employees, notifying
them that the Board had ordered a second election. The
memorandum urged employees to vote no, and then re-
minded employees of the 50-cent raise, stating that the
Employer was “continuing to fight on your behalf to
keep” the pay raise, but the Union was “still arguing”
that the pay raise should be taken away. Considering the
Employer’s statements, employees would reasonably
view the purpose of the raise as an attempt to dissuade
them from supporting the Union.4 For all these reasons, I
would find that an inference is warranted that the pay
raise was coercive.
Contrary to my colleagues, I would find that the Em-
ployer has not rebutted that inference. First, although the
Employer had a past practice of wage increases that took
effect in October, there does not appear to be a consistent
past practice regarding when these raises were an-
nounced. Second, the Employer’s explanation at the
hearing for announcing the raise in March 2001 was that
it did not want employees to wait any longer for a raise,
and it considered the Union decertified, based on the
December 2000 election results. The Employer knew in
March 2001, however, that objections were pending and
the election results were not final. Third, the Employer’s
own statements about the raise, discussed above, under-
mine its position that the raise was not granted to influ-
ence the election.
Accordingly, I would sustain Objection 1 and order a
third election.5

this issue in the present representation case, because there is no 8(a)(5)
charge before us.
I agree that the sole issue before the Board is whether the Employer
engaged in objectionable conduct that interfered with the election, and
that the Board cannot find that the raise violated Sec. 8(a)(5). In my
view, however, in a decertification context, the absence of an 8(a)(5)
finding does not necessarily preclude the Board from finding that a
unilateral wage increase, granted in denigration of an incumbent union
while the union’s objections are pending, interfered with the election.
See fn. 5, below.
4 Contrary to my colleagues, I do not find it persuasive that the Un-
ion had the opportunity to respond to the Employer’s literature. What-
ever the Union could have said, or did say, about the raise, the fact
remains that the Employer granted a raise twice as large as in recent
years and connected that raise to the decertification proceedings.
5 In addition to arguing that the wage increase was not an objection-
able grant of benefits, the Employer also argues that this objection
should be overruled under Texas Meat Packers, 130 NLRB 279 (1961).
The Employer argues that the nature of the objectionable conduct al-
leged by the Union and found by the judge—a unilateral change in
wages—requires a finding that the Employer violated Sec. 8(a)(5), and
there are no 8(a)(5) charges before the Board.
I have doubts whether Texas Meat Packers should apply here. In
Texas Meat Packers, the Board held that where conduct alleged to have
interfered with an election “could only be held to be such interference
upon an initial finding that an unfair labor practice was committed, it is
Board policy . . . not to inquire into such matters in the guise of consid-
ering objections to an election.” 130 NLRB at 280. The Board also
VIRGINIA CONCRETE CORP. 1189

Thomas P. McCarthy, Esq., for the Regional Director, Region
5.
John G. Kruchko, Esq. (Kruchko & Fries), of McLean, Vir-
ginia, for the Employer.
Hugh J. Beins, Esq., of Washington, D.C., for the Union.
SUPPLEMENTAL REPORT ON OBJECTIONS
DECISION ON REMAND
MARION C. LADWIG, Administrative Law Judge. On June
26, 2002, the Board remanded this proceeding for me to con-
sider the Employer’s posthearing brief, which was timely deliv-
ered to the Board’s mailroom, but which I did not receive be-
fore issuing my April 30, 2002 Report on Objections Decision.
After considering the Employer’s posthearing brief, I issue the
following supplemental report.
STATEMENT OF THE CASE
On July 2, 2001,1 in this union decertification case, the
Board issued a Decision and Direction of Second Election,
which was conducted on August 15. Of about 213 eligible
voters, 81 cast ballots for and 97 cast ballots against the Union.
There were five challenged ballots, an insufficient number to
affect the results of this second election. (Br. Exh. 1D.) On
August 21 the Union filed timely objections to the Employer’s
preelection conduct (Br. Exh. 1A). The hearing on objections
was held February 27, 2002.
The first election had been conducted December 20, 2000
(Br. Exh. 1B), following the September 30, 2000 expiration of
the Union’s last agreement with the Employer (Tr. 11; U. Exh.
14). While union objections to the Employer’s conduct before
that first election were pending, the Employer withdrew recog-
nition from the Union and refused to bargain.
Thus, sometime after the Union lost the first election by a
vote of 78 to 86 (Br. Exh. 1B), Operations Vice President

stated, however, that “only a very small minority of objections in repre-
sentation cases are of the type here involved, i.e., conduct innocent on
its face and which can only be shown to have interfered with an elec-
tion by an initial finding that an unfair labor practice has been commit-
ted.” Id. at 281 fn. 2. In Texas Meat Packers, the gravamen of the
union’s objection was that prounion employees were discriminatorily
laid off before the election in violation of Sec. 8(a)(3). Arguably,
Texas Meat Packers should apply only in other, similar cases turning
on employer motive, because those cases do involve “conduct innocent
on its face.” That is, only by looking behind the conduct itself and
finding an unlawful motive can the Board find that the conduct inter-
fered with the election. I am not aware of any decision applying Texas
Meat Packers to a unilateral grant of benefits in a decertification con-
text. I do not think that a grant of benefits, given in total denigration of
an incumbent union while the union’s objections are pending, is con-
duct “innocent on its face” under Texas Meat Packers. See W. A.
Krueger Co., 299 NLRB 914, 916–917 (1990) (in a decertification
context, an election-day tally that is subject to objections does not
relieve employer of its preexisting bargaining obligations; allowing
employer to make unilateral changes at its peril while objections are
pending “would have the same tendency to undermine an incumbent
union’s future effectiveness and status in employees’ eyes as bypassing
the bargaining representative under other circumstances”). Therefore, I
question the applicability of Texas Meat Packers here.
1 All dates are in 2001 unless otherwise indicated.
Stephen Render informed the union steward that they consid-
ered the election over, that the Union was decertified, and that
the Employer was not going to recognize the Union (Tr. 84).
When testifying, Render did not deny doing so. On February
14, the Employer’s counsel notified the Union’s counsel that a
majority of the employees rejected representation by the Union
and we “respectfully decline your invitation for collective bar-
gaining negotiations until such time as your union establishes
the requisite majority support” (U. Exh. 2).
In March the Employer unilaterally granted the employees a
50-cents-an-hour wage increase, retroactive to October 1, 2000
(Tr. 107).
On April 10, the Union filed an unfair labor practice charge
in Case 5–CA–29652 against the Employer (U. Exh. 13), alleg-
ing the Employer’s unlawful “granting the employees a 50¢ an
hour wage increase on or about March 2000.” In the Em-
ployer’s response, President Diggs Bishop on April 27 sent the
employees a letter (U. Exh. 3), “Re. Teamsters Union Files
Charges to Take Away Your Pay RAISE.”
In the April 27 letter, Bishop warned the employees with loss
of the “50¢ an hour increase retroactive to October” if the Un-
ion prevailed, falsely telling them that the “the union’s Unfair
Labor Practice charge would result in all employees losing this
pay increase.” [Emphases in original.]
Bishop then stated in the letter:

[I]t is our intention to fight this action by the union as aggres-
sively as possible and for as long as it takes. You must ask
yourself the question, “Why would I want an exclusive bar-
gaining representative who is attempting to take away my pay
raise?. . . . Why would you want a representative who files
legal actions to take away your pay increase?” [Emphases in
original.]

On July 5, 3 days after the Board set aside the first election
and directed a second election, Bishop sent the employees a
memo (U. Exh. 4) regarding the decertification vote. Referring
to “your 50¢ per hour pay raise,” he claimed “we are continu-
ing to fight on your behalf to keep the money” and falsely
stated:

The Union, however, is still arguing to the Government that
the pay raise should be taken away from you. [Emphasis
added.]

President Bishop admitted on direct examination (Tr. 110)
that the Union responded in a pamphlet mailed to the employ-
ees (“Attention Virginia Concrete Employees,” Emp. Exh. 2,
“Mailed to home 7/27/01”):

Bishop is lying when he says that the union is trying to de-
prive you of the 50 cents. [Emphasis added.]

As shown in attachment B to the Employer’s brief, the Union
filed a charge in Case 5–CA–29854 on July 17, alleging the
Employer’s unlawful “threatening that the Union is trying to
take away their 50¢ an hour wage increase.”
On August 14, within the 24-hour period before the second
election, the Employer sent all 174 of its drivers on duty the
following 7-minute, uninvited four-line campaign message,
which was displayed on the 2-by-4 inch screen of the Mobile
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190
Data Unit (MDU) modem box mounted above the dashboard on
each of the mixer trucks they were driving:

YOUR VOTE COUNTS
IT’S YOUR FUTURE
BRING IT TO AN END
VOTE NO

The issues are whether objections to the above and other
employer preelection conduct must be sustained, the second
election set aside, and a third election directed.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Employer and the Union, I find as follows.
Objections 1 and 5
A. Original Findings
As grounds for setting aside the second election, the Union’s
Objection 1 cites the Employer’s “Ignoring and bypassing the
Union in granting a 50¢ an hour raise,” and its Objection 5 cites
the Employer’s “Failing and refusing to recognize the Union’s
status as exclusive bargaining representative” (Br. Exh. 1A).
As held in Mike O’Connor Chevrolet, 209 NLRB 701, 703
(1974):

The Board has long held that, absent compelling economic
considerations for doing so, an employer acts at its peril in
making changes in terms and conditions of employment dur-
ing the period that objections to an election are pending and
the final determination has not been made. And where the fi-
nal determination on the objections results in the certification
of a representative, the Board has held the employer to have
violated Section 8(a)(5) and (1) for having made such unilat-
eral changes. [Emphasis added; footnotes omitted.]

In that case the employer defended its unilateral changes on
the ground that they “were motivated by sound business con-
siderations.” (Emphasis added.) The Board rejected the em-
ployer’s objections to the election and held (209 NLRB at 704):

It is well established, however, that whether unlawfully moti-
vated or not, an employer violates Section 8(a)(5) and (1)
where it makes changes in terms and conditions of employ-
ment during the pendency of objections to an election which
eventually results in the certification of the union. [Emphasis
added.]

This often-cited Mike O’Connor rule is followed both when
the union wins a representation RC election and the employer
files objections that are rejected, and when the union loses a
decertification RD election and the union files objections that
are sustained.
In Dow Chemical Co. v. NLRB, 660 F.2d 637, 654 (5th Cir.
1981), the court ruled:

Under what we also call the Mike O’Connor rule, an
employer may make unilateral changes following a union
victory in an initial representation election and before the
employer’s election objections are resolved, but does so at
its peril [emphasis in original]. If the employer’s objec-
tions are sustained, no duty to bargain with the union ex-
isted and a failure to bargain charge under § 8(a)(5) will be
dismissed. . . . . If the employer’s objections are rejected,
its duty to bargain relates back to the date of the election,
and the employer’s unilateral actions while objections
were pending are automatic violations of § 8(a)(5). . . .
Though Mike O’Connor involved an initial representa-
tion election won by the union, and the present case in-
volves a decertification election lost by the union, we see
no basis in law or justice for distinguishing between types
of election or distinguishing on a basis of which side won
or lost. Moreover, we view the Act as requiring that its
labor peace goals, as well as protection of workers’ free-
dom to choose, be achieved by an even-handed application
of the same rules of the game to all elections and to both
sides.

The Board in Underground Service Alert, 315 NLRB 958,
959, 960 fn. 5, 961 (1994), applied the Mike O’Connor at-its-
peril rule governing changes during the period between ballot-
ing and certification in a decertification election “that ulti-
mately resulted in the certification of the Union.”
In Underground Service, a Board majority did not rely on W.
A. Krueger, 299 NLRB 914, 915 (1990). In that earlier case,
another Board majority “declined to extend the Mike O’Connor
‘at risk’ rule to decertification situations” in elections that do
not result in certification of the union. The Board majority in
Underground Service pointed out (315 NLRB at 961 fn. 8):

In that case [W. A. Krueger], the union was ultimately de-
clared the loser of the election. In the instant case [Under-
ground Service], the union was ultimately declared the win-
ner.

Before the hearing on objections in the present case [see the
Regional Director’s February 1, 2002 Supplemental Decision
and Notice of Hearing] (Board Exh. 1D p. 2), the Employer’s
defenses to Objection 1 (“Ignoring and bypassing the Union in
granting a 50¢ an hour raise”) were as follows:

The Employer concedes granting the [50¢] wage increase but
contends that it was granted in conformance with past prac-
tice, that refusing to grant the wage increase would have con-
stituted objectionable conduct, and that the wage increase did
not interfere with employees free choice in the election.

Also before the hearing (Board Exh. 1D p. 3), the Em-
ployer’s defense to Objection 5 (“Failing and refusing to recog-
nize the Union’s status as exclusive bargaining representative”)
was a general denial that “The Employer denies having en-
gaged in objectionable conduct.”
At the hearing on objections, President Diggs Bishop testi-
fied, on direct examination in the Employer’s defense (Tr. 107–
108):

Q. (BY MR. KRUCHKO): Why did you grant the in-
crease in March [2001] that ended up being retroactive to
October 1st?
A. Well, we didn’t feel that we could have the em-
ployees wait any longer. We had had a vote. The union
was decertified. We had seen the objections and didn’t
feel that any of them were warranted, and we didn’t think
VIRGINIA CONCRETE CORP. 1191
it was fair to have the employees wait any longer. We
didn’t know how long it was going to take to have a deci-
sion.

On cross-examination (Tr. 124–126), Bishop testified that he
refused to recognize and bargain with the Union because it lost
the (December 20, 2000) vote, that he believed the election
would be certified, but that regardless whether the Union’s
objections were good or bad, he would not have recognized and
bargain with the Union because “It lost the vote.”
Regarding the Employer’s prehearing defense that the 50-
cent wage increase “was granted in conformance with past
practice,” Bishop testified (Tr. 105) that when the Employer
reached an agreement with the Union in 1998, there was a ret-
roactive increase of 30 cents to October 1996 and 35 cents to
October 1997 and a negotiated increase of 25 cents in October
1998 and [25] cents in 1999. Therefore there was no past prac-
tice of granting an annual wage increase in recent years and
only a single instance of granting retroactive increases, which
were negotiated with the Union, in the amounts of 30 and 35
cents. The only grant of a retroactive 50-cent increase was in
March 2001, when objections to the first decertification elec-
tion were pending.
Thus, the Employer’s defenses—in the absence of any con-
tentions or arguments in a brief—completely ignore the
Board’s Mike O’Connor rule that an employer acts “at its peril”
if it makes unilateral changes before the election objections are
resolved.
I find that by granting the unilateral 50-cent wage increase
while objections to the first election were pending, the Em-
ployer acted at its peril that doing so would be illegal if the
decertification election “ultimately resulted in the certification
of the Union.” Moreover, I find that by taking this unilateral
action, before a determination of its right to do so (was) deter-
mined, the Employer interfered with the second election.
Under these circumstances, I find that Objections 1 and 5
should be sustained, because the Employer’s conduct deprived
the employees of a free and fair choice in the election, requiring
the August 15 second election to be set aside.
B. Employer Contentions
1. Objection 1
a. Objection based on withdrawn charge
On considering the Employer’s brief (pursuant to the
Board’s remand of this proceeding for me “to consider the Em-
ployer’s posthearing brief and issue a supplemental report”), I
find that the Employer has, in fact, completely ignored the
Board’s well-established and court-approved Mike O’Connor
at-its-peril rule. That rule has been the controlling standard in
decertification cases for making changes in conditions of em-
ployment during the period that objections to an election are
pending, as in the above-cited Dow Chemical and Underground
Service decertification cases.
In the Employer’s March 25, 2002 posthearing brief (at 3),
under Argument, the Employer’s No. 1 contention is that an
unfair labor practice charge that has been withdrawn may not
be the basis for an election objection.
To support this contention, the Employer cites in the brief (at
3) the Board’s Wagner Act decision, Ellicott Machine Corp.,
54 NLRB 732, 735 (1944), which has never been cited by the
Board in the 58 years since that case was decided. There the
Board held:

[W]e are of the opinion that a labor organization which has
filed a petition seeking a certification of representatives and
which has also filed charges of unfair labor practices against
an employer, should not be permitted to proceed on the peti-
tion after withdrawing its charges without prejudice, and then,
in the event it loses at a subsequent election, be permitted to
use the subject matter of the charges as objections to the elec-
tion. Accordingly, in the instant case and in future cases
where charges are withdrawn without prejudice to facilitate
the determination of a representation proceeding, we shall
treat the withdrawal of the charges without prejudice as an
automatic waiver by the petitioning union of the right to use
the subject matter of those charges as a basis for objections to
the election.

In the absence of any subsequent decision in which the
Board cited Ellicott Machine, the Employer cites in its brief (at
3) Redway Carriers, 274 NLRB 1359, 1367–1368 (1985), a
case in which no exception was taken to the administrative law
judge finding related to Ellicott Machine. It is well established
that a judge’s finding, to which no exception is taken, is not
considered precedent for any other case because of the Board’s
practice of adopting, as a matter of course, a judge’s findings to
which no exceptions are taken. Watsonville Register-
Pajaronian, 327 NLRB 957, 959 fn. 4 (1999).
Nevertheless, the Employer cites the judge’s finding in Red-
way Carriers as precedent in the present case. It also cites in
its brief (at 3–4) Taste Baking Co., Case 4–CA–23640 (1996), a
case which was never before the Board—no exceptions having
been filed to the judge’s decision—and in which the judge re-
lied on the judge’s finding in Redway Carriers as precedent.
Both cases are obviously inapplicable.
The Employer does not cite any Board decision, ruling that
withdrawing a preelection charge nullifies the Mike O’Connor
at-its-peril rule that governs changes in conditions of employ-
ment during the pendency of objections to an election which
eventually results in the certification of the union.
Such a ruling would prevent a final determination in any
case in which an employer engaged in conduct depriving the
employees of a free and fair choice in an election, if there was a
preelection withdrawal of a charge, alleging that the employer’s
conduct was unlawful.
I find that the Board’s 1944 Ellicott Machine decision does
not nullify the Mike O’Connor at-its-peril rule as the control-
ling standard in this decertification case.
Moreover, in the present case, there was no preelection with-
drawal of the Union’s April 10 unfair labor practice charge in
Case 5–CA–29652 (U. Exh. 13), alleging unlawful granting of
the 50-cent increase in March (when objections to the first elec-
tion on December 20, 2000 were still pending). The second
election was conducted on August 15, without the preelection
withdrawal of the April 10 charge. As shown in attachment A
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192
to the Employer’s brief, that charge was not withdrawn until
February 5, 2002, nearly 6 months later.
I find that the Union’s April 10 charge, which was with-
drawn on February 5, 2002, about 6 months after the second
election was conducted on August 15, does not preclude a find-
ing that the Employer’s granting the 50-cent wage increase
deprived the employees of a free and fair choice in the second
election.
b. No interference with employee choice
In its brief (at 4), the Employer next contends that the 50-
cent raise did not interfere with the election or employee
choice.
To the contrary, obviously the Employer’s granting the 50-
cent wage increase—particularly in the context of the Em-
ployer’s accompanying conduct—interfered with the employ-
ees’ free and fair choice in the August 15 election.
As found, the Employer engaged in the following conduct, in
response to the Union’s April 10 unfair labor practice charge,
alleging unlawful granting of the 50-cent wage increase:

1. On April 27 the Employer sent the employees a let-
ter, “Re. Teamsters Union Files Charges to Take Away
Your Pay RAISE.”
2. In the letter, the Employer warned the employees
with loss of the “50¢ an hour increase retroactive to Octo-
ber” if the Union prevailed, falsely telling them that “the
union’s Unfair Labor Practice charge would result in all
employees losing this pay increase.” [Emphases in origi-
nal.]
3. Also in the letter, the Employer stated: “You must
ask yourself the question, ‘Why would I want an exclusive
bargaining representative who is attempting to take away
my pay raise?. . . . Why would you want a representative
who files legal actions to take away your pay increase?’”
[Emphases in original.]
4. In a July 5 memo (3 days after the Board set aside
the first election and directed a second election), the Em-
ployer falsely stated, “The union . . . is still arguing to the
Government that the pay raise should be taken away from
you.”

Obviously, the Employer was intentionally endeavoring to
persuade the employees that a vote for the Union would jeop-
ardize their retroactive wage increase.
Although the Union mailed the employees a pamphlet on
July 27 (before the August 15 second election), stating that
President Bishop “is lying when he says that the union is trying
to deprive you of the 50 cents,” undoubtedly the Employer’s
false and misleading conduct had an impact on the employees’
choice in the election.
In its brief, the Employer not only completely ignores this
conduct, but also continues to ignore the Mike O’Connor at-its-
peril rule governing making changes in conditions of employ-
ment during pendency of objections.
In Mike O’Connor, 209 NLRB 701, 703–704 (1974), as dis-
cussed above, the Board held that “absent compelling economic
considerations [emphasis added] for doing so, an employer acts
at is peril in making” the changes in conditions of employment.
The Board rejected the employer’s defense that the changes
“were motivated by sound business considerations [emphasis
added]” and held:

It is well established . . . that, whether unlawfully motivated or
not, an employer violates Section 8(a)(5) and (1) where it
makes changes in terms and conditions of employment during
the pendency of objections to an election which eventually re-
sults in the certification of the union. [Emphasis added.]

Nowhere in the many arguments advanced by the Employer
in its brief (at 3–10), has the Employer cited any evidence of
“compelling economic considerations” for the Employer’s
granting the retroactive 50-cent wage increase during the pend-
ency of the objections.
I specifically reject the Employer’s contention in its brief (at
6) that “First, and perhaps most importantly, Virginia Concrete
was simply acting in accordance with its regular business prac-
tice of implementing its yearly raise every October.” (Empha-
sis added.)
To the contrary, as indicated above in my original findings,
President Bishop testified (Tr. 105), there was no yearly raise in
1996 or 1997. In March 1998—about 2-1/2 years since the
employees last received a wage increase in October 1995—the
Employer negotiated a 30-cent increase retroactive to October
1996 and a 35-cents retroactive to October 1997. The October
increase was 25 cents in 1998 the 25 cents again in 1999.
In negotiations in 2000—after the decertification petition
was filed on July 25, 2000 (Board Exh. 1B p. 2 fn. 3) and be-
fore the upcoming election on December 20, 2000—the Em-
ployer offered a 50-cent increase, twice as much as in the two
preceding years. As indicated, there have been no negotiations
after the first election.
After considering the Employer’s posthearing brief, I find
that Objection 1 should be sustained, because the Employer’s
granting the 50-cent increase during the pendency of objections
to the first election deprived the employees of a free and fair
choice in the second election.
2. Objection 5
As found, regarding the Employer’s “Failing and refusing to
recognize the Union’s status as exclusive bargaining
representative,” (a) President Bishop testified that he refused to
recognize and bargain with the Union after the first election on
December 20, 2000, (b) Operations Vice President Render
informed the union steward that the Employer was not going to
recognize the Union, and (c) on February 14, 2001, the Em-
ployer’s counsel notified the Union’s counsel that we “respect-
fully decline your invitation for collective bargaining negotia-
tions until such time as your union establishes the requisite
majority support.”
Then in March, without any negotiations with the Union, the
Employer granted the employees a unilateral 50-cent wage
increase, retroactive to October 1, 2000.
In its brief (at 27–29), the Employer contends, in effect, that
the Union has failed to prove that the employees were aware of
the Employer’s failure and refusal to recognize the Union after
the first election and has failed to prove “the Employer’s failure
VIRGINIA CONCRETE CORP. 1193
to bargain with the Union interfered with the laboratory condi-
tions surrounding the election.”
To the contrary, the employees were obviously aware that
the Employer was refusing to continue recognizing and bar-
gaining with the Union after the first election, in the following
context:

1. The Employer’s unilateral granting the retroactive
50-cent wage increase.
2. The Union’s charging that the Employer’s granting
the 50-cent wage increase and “threatening that the Union
is trying to take away their 50¢ an hour increase.”
3. The Employer’s responding in a letter and memo to
the employees that the Union’s “Unfair Labor Practice
charge would result in all employees losing this pay in-
crease, that “Why would you want a representative who
files legal actions to take away your pay increase?” and
that the Union “is still arguing to the Government that the
pay increase should be taken away from you.”

Undoubtedly the Employer’s failure and refusal to recognize
the Union after the first election, along with the Employer’s
well-publicized false and misleading antiunion conduct, had an
impact on the employees’ choice in the election.
After considering the Employer’s posthearing brief, I find
that Objection 2 should be sustained, because the Employer’s
failing and refusing to recognize the Union’s status as exclusive
bargaining representative during the pendency of objections to
the first election deprived the employees of a free and fair
choice in the second election.
Objection 2
A. Original Findings
As further grounds for setting aside the second election, the
Union’s Objection 2 cites the Employer’s “Telling the employ-
ees that the Union was filing charges in order to take away their
50¢ an hour raise.”
Before the hearing, the Employer’s defense was as follows
[see the Regional Director’s February 1, 2002 Supplemental
Decision and Notice of Hearing] (Board Exh. 1D p. 2):

The Employer denies that [its April 27 and July 5] letters con-
stitute objectionable conduct and that, even assuming ar-
guendo a misrepresentation was made [emphasis added], it
was not deceptive or otherwise misleading.

The Board held in Shopping Kart Food Market, 228 NLRB
1311, 1313–1314 (1977):

[W]e decide today that we will no longer set elections aside
on the basis of misleading campaign statements. However,
Board intervention will continue . . . in instances where a
party has engaged in such deceptive campaign practices as
improperly involving the Board and its processes [emphasis
added] . . . . [W]e choose to . . . [set] an election aside not on
the basis of the substance of the representation, but the decep-
tive manner in which it was made [emphasis in original].

Five years later, in Midland National Life Insurance Co., 263
NLRB 127, 129 (1982), the Board decided “to return to the
sound rule announced in Shopping Kart Food Market.”
In the present case, the “substance” of the Employer’s mis-
leading representation, as alleged in Objection 2, was President
Bishop’s “Telling the employees that the Union was filing
charges to take away their 50¢ an hour raise.”
Similarly, Bishop indicated the same substance of his repre-
sentation both in the title of his April 27 letter to the employees
(U. Exh. 3), “Re: Teamsters Union Files Charges to Take Away
Your Pay RAISE,” and in the statement in his letter, “You must
ask yourself the question, ‘Why would I want an exclusive bar-
gaining representative who is attempting to take away my pay
raise??’” Also at the hearing, Bishop admitted that this was the
substance of his representation (Tr. 109, 127).
As held in Shopping Kart, the Board will no longer set aside
an election based on the “substance” of a misleading represen-
tation, unless it is made in a deceptive manner, improperly
invoking the Board and its processes. The employees are ex-
pected to be able to evaluate the representation as mere propa-
ganda, particularly in a case such as this, in which an em-
ployer’s misleading representation is disputed by the Union.
President Bishop, however, made his misleading representa-
tion in such a deceptive manner.
In the text of his April 27 letter, Bishop engaged in the de-
ceptive campaign practice of “improperly involving the Board
and its processes.” He warned the employees with loss of the
“50¢ an hour increase retroactive to October” if the Union
prevailed, falsely telling them that the “the union’s Unfair La-
bor Practice charge would result in all employees losing this
pay increase.”
Then on July 5, 3 days after the Board set aside the first elec-
tion and directed a second election, Bishop repeated the same
deceptive campaign practice, this time improperly involving
“the Government.” Bishop sent the employees a memo (U.
Exh. 4) regarding the upcoming decertification vote. Referring
to “your 50¢ per hour pay raise,” he claimed “we are continu-
ing to fight on your behalf to keep the money” and falsely
stated:

The Union, however, is still arguing to the Government that
the pay raise should be taken away from you. [Emphasis
added.]

To the contrary, the Board’s well-established practice is not
to order the revocation of an unlawfully granted unilateral wage
increase, unless requested by the union. Herman Sausage Co.,
122 NLRB 168, 175 (1958) and M. A. Harrison Mfg. Co., 253
NLRB 675, 677 (1980).
Obviously the Union, seeking to continue representing the
employees, could not be expected to request the Board to re-
voke the largest retroactive wage increase ever granted by the
Employer.
Thus, by improperly involving the Board and its processes in
its April 27 letter, and “the Government” in its July 3 memo,
the Employer made the misleading representation in a decep-
tive manner, warning the employees that if the Union proved its
charge, the Board would order the Employer to revoke the
wage increase. By making the misleading representations in
this deceptive manner, the Employer was preventing the em-
ployees from evaluating the representation as mere propaganda.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194
Therefore, when the employees voted in the election, they
were faced with the Employer’s threat that if Union proved the
charge against the Employer, their 50-cent pay increase would
be taken away. The Board specifically held in Midland Na-
tional Life, 263 NLRB at 133:

As was the case in Shopping Kart, we will continue to protect
against other campaign conduct, such as threats, promises, or
the like, which interferes with employee free choice. [Em-
phasis added.]

I find that Objection 2 should be sustained, because the Em-
ployer’s conduct deprived the employees of a free and fair
choice in the election, requiring the August 15 second election
to be set aside.
B. Employer Contentions
1. Objection 2
a. Objection based on withdrawn charge
Again in its brief (at 10), the Employer completely ignores
the Board’s well-established and court-approved Mike
O’Connor at-its-peril rule, which is the controlling standard in
decertification cases for making changes in conditions of em-
ployment during the period that objections to an election are
pending.
The Employer contends that the pretrial withdrawal of an un-
fair labor charge in this decertification case, in which objec-
tions are pending, prohibits the Union from succeeding on an
objection “related to the Employer telling employees that the
Union was trying to take away their fifty cent raise.”
Without further explanation, the Employer states in its brief
(at 10 fn. 14): “For a more detailed discussion of Board law
supporting this assertion, please refer” to its discussion of the
above-quoted Board’s 1944 Ellicott Machine decision. As
found, that decision does not nullify the Mike O’Connor at-its-
peril rule as the controlling standard in this decertification case.
I find no merit to this contention.
I therefore find that the preelection withdrawal of the Un-
ion’s July 17 charge in Case 5–CA–295854 (attachments B and
C to the Employer’s brief), does not preclude a finding that the
Employer’s “threatening that the Union is trying to take away
their 50¢ an hour wage increase” deprived the employees of a
free and fair choice in the second election.
b. No interference with employee choice
In its brief (at 11), as its first defense, the Employer points
out that President Bishop testified “he believed” that the Un-
ion’s unfair labor charge “did in fact mean that the Union was
trying to take away the fifty cent raise.” The Employer then
contends that it is “only logical” that Bishop “would believe
that the remedy for [the Union’s] objection to the granting of a
pay increase would be to take that increase away.” Thus the
Employer implies that Bishop was acting without benefit of
counsel.
Clearly, however, Bishop’s purported belief is not relevant in
determining whether his conduct interfered with the employees’
free and fair choice in the election. Moreover, he did not im-
press me as being a truthful witness when testifying what “he
believed.” I discredit his testimony about his belief.
The Employer next contends that even assuming arguendo
that Bishop “may have unintentionally made a misrepresenta-
tion,” it would not be objectionable conduct under Board analy-
sis, citing the Board’s above-discussed decision, Midland Na-
tional Life Insurance Co., 263 NLRB 127 (1982). The Em-
ployer, however, omits any reference to the Board’s deciding in
that case (263 NLRB at 129) “to return to the sound rule an-
nounced in Shopping Kart Food Market,” in which the Board
held (228 NLRB at 1313), as quoted above, that

Board intervention will continue to occur in instances where a
party has engaged in such deceptive campaign practices as
improperly involving the Board and its processes [emphasis
added].

As originally found, President Bishop made his misleading
representation in such a deceptive manner by “improperly in-
volving the Board and its processes.” In his April 27 letter he
was threatening the employees with the loss of their “50¢ an
hour increase retroactive to October” (by Board action) if the
Union proved its unfair labor practice charge. In his July 5
memo, he referred to the Board as “the Government” taking
away their pay raise.
Although the letter and the memo were drafted to avoid re-
ferring to “the Board and its processes” by name, both were
directed toward the Union’s unfair labor charge filed with the
Board. I find it was obvious to the employees that Bishop was
telling them that the Board would take away their 50-cent wage
increase, “retroactive to October,” if the Union prevailed.
I therefore find that Objection 2 should be sustained, because
the Employer’s conduct deprived the employees of a free and
fair choice in the election, requiring the August 15 second elec-
tion to be set aside.
2. Objection 3
a. Original findings
The Union cites in its Objection 3 the Employer’s “Ignoring
and bypassing the Union by switching Health and Welfare
Plans and administrators with increased benefits and improve-
ments.”
Before the hearing, in its defense, the Employer stated, in
part [see the Regional Director’s February 1, 2002 Supplemen-
tal Decision and Notice of Hearing] (Board Exh. 1D p. 2):

[I]ts parent company, Florida Rock, unilaterally imposed
changes in the Employer’s health insurance plan, and con-
trolled the timing of its introduction and implementation in,
respectively, July and September 2001. . . . [and] that these
changes were mandated in over sixty divisions of Florida
Rock, including the Employer.

The evidence shows that the cost of the plans is based on all
60 divisions of Florida Rock, that savings were based on its
buying power as a corporation, and that the Employer and oth-
ers in the Northern Concrete Group had no choice whether to
accept the new plans (Tr. 102, 157–158, 167, 192).
Whether or not the Employer’s failure to consult with the
Union before implementing the changes was an unfair labor
VIRGINIA CONCRETE CORP. 1195
practice, I find that its failure to do so did not interfere with the
employees’ choice at the second election, because the Em-
ployer was not empowered to change the parent company’s
decision.
I therefore find that Objection 3 should be rejected.
b. Employer contentions
In the Employer’s lengthy discussion in its brief (at 13–19),
it contends that the evidence clearly establishes that the change
in its health and welfare plan did not constitute objectionable
conduct.
On considering the Employer’s posthearing brief, I again
agree that Objection 3 should be rejected.
1. Objection 4
a. Original findings
The Union alleged in Objection 4 that within 24 hours before
the election, the Employer violated the Peerless Plywood rule
by sending, on its computers to every employee in the bargain-
ing unit, messages stating “Bring it to an end—Vote No—your
future depends on it.”
Before the hearing, the Employer’s defense was as follows,
without discussing the Peerless Plywood rule [see the Regional
Director’s February 1, 2002 Supplemental Decision and Notice
of Hearing] (Board Exh. 1D p. 3):

The Employer concedes running two computer messages sent
to its trucks on the day before the election, but states that the
first message simply reminded employees to vote, and the
second message read: “Your Vote Counts. It’s Your Future.
Bring it to an End. Vote No.

As indicated above, the evidence (Tr. 170–179, 182–183; E.
Exhs. 7–9, 10 pp. 26–31) shows that on August 14, within the
24-hour period before the second election, the Employer sent
all 174 of its drivers on duty the following 7-minute, uninvited
four-line campaign message, which was displayed on the 2-by-
4 inch screen of the (Mobile Data Unit) MDU modem box
mounted above the dashboard on each of the mixer trucks they
were driving:

YOUR VOTE COUNTS
IT’S YOUR FUTURE
BRING IT TO AN END
VOTE NO

In Peerless Plywood Co., 107 NLRB 427, 428–430 (1953), a
case in which the employer made a noncoercive speech to as-
sembled employees, the Board held as follows:

[W]e now establish an election rule which will be applied in
all election cases. This rule shall be that employers and un-
ions alike will be prohibited from making election speeches
on company time to massed assemblies of employees within
24 hours before the scheduled time for conducting an election.
. . . .
This rule will not interfere with the rights of unions or
employers to circulate campaign literature on or off the
premises at any time prior to an election . . . . Moreover,
the rule does not prohibit employers or unions from mak-
ing campaign speeches on or off company premises during
the 24-hour period if employee attendance is voluntary
and on the employee’ own time.

In the more recent case of Purolite, 330 NLRB 37, 39–40
(1999), the Board pointed out that in Peerless Plywood, the
Board emphasized that the employees were on company time
and not off the clock, free to choose whether to listen to a
party’s appeal, and explained that an objective was to “keep
elections free of undue advantage for any party.” It held that
the Peerless Plywood doctrine demonstrates “the Board’s goal
. . . to keep voters as free of uninvited mass messages as possi-
ble during the period just prior to the conduct of the election.”
Also in Purolite, the Board pointed out that in U. S. Gypsum
Co., 115 NLRB 734, 735 (1956)—in which a union broadcast
its message from a sound truck stationed on the street—
employees who were “unwillingly exposed to a campaign mes-
sage became a captive audience within the meaning of Peerless
Plywood.”
The Board concluded in Purolite that the union’s sound truck
broadcast of tape-recorded music, including prounion songs,
which carried into a number of employee workstations
throughout the facility, “violate the standards set forth in Peer-
less Plywood prohibiting campaign speeches to a massed as-
sembly of employees within 24 hours of an election.” The
Board set aside the election and directed another election.
In the present case, within 24 hours of the second election,
the Employer took advantage of new technology to send all 174
of its drivers on duty its campaign message, emphasizing its
previous pleas, urging them in its campaign literature (U. Exhs.
5, 6; Tr. 13–16) to “Bring It to an End” and “Vote No,” to
“BRING IT TO AN END!” and “VOTE NO! Time to Decide
Your Future.”
Although the drivers were not required to listen to an em-
ployer speech in a “massed assembly” as in Peerless Plywood,
neither were the employees in U. S. Gypsum and Purolite. Like
employees in both those cases, the drivers were on duty and
subjected to an uninvited campaign message. Thus, they like-
wise were employees “unwillingly exposed to a campaign mes-
sage [and] became a captive audience within the meaning of
Peerless Plywood.”
The Employer’s four-line MDU message to all the drivers
could not be ignored, because a beeper came on and stayed on
until the driver turned it off. It was possible for the driver to
delete the 7-minute message by sending a message or scrolling
to another message, but by that time the Employer would have
succeeded in communicating its short campaign message.
There was no opportunity for the Union to send the drivers
such a mass message in the 24-hour period before the election.
As held in Purolite, the “Board’s goal is to keep voters as
free of uninvited mass messages as possible during the period
just prior to the conduct of the election.” Permitting the Em-
ployer to send its uninvited mass message within the 24-hour
period in this high-tech way would violate the Board’s objec-
tive to “keep elections free of undue advantage for any party.”
I therefore find that Objection 4 should be sustained. I find
that the Employer’s conduct deprived the employees of a free
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196
and fair choice in the election, that the second election should
be set aside, and that a third election should be directed.
b. Employer contentions
In its brief (at 20–23), the Employer contends that the mes-
sage on the mobile data unit screens does not constitute a “cap-
tive audience” speech with a “mass psychology,” referred to in
Peerless Plywood, 107 NLRB at 429 (1953). As discussed
above, however, the later cases of Purolite, 330 NLRB 37, 39–
40 (1999) and U. S. Gypsum Co., 115 NLRB 734, 735 (1956),
do not require the mass psychology of a speech before an as-
sembly of employees.
The Employer cites Operations Vice President Render’s an-
swer to the following leading question by employer counsel
(Tr. 176):

Q. [BY MR. KRUCHKO]: So your driver is not required
to see a message he doesn’t want to see, correct?
A. Right.
MR. BEINS: Objection to the leading.
JUDGE LADWIG: Overruled.

The Employer later contends in its brief (at 22), however,
that the employees had the option of discarding the message “as
soon as it had been review.” As found, by that time the Em-
ployer would have succeeded in communicating its short cam-
paign message. I discredit Render’s answer to the contrary.
After considering all the contentions and authorities cited in
the Employer’s brief (at 20–27), I find that the Board’s rulings
in Purolite and U. S. Gypsum are controlling in interpreting
Peerless Plywood rule and find that permitting the Employer to
send its uninvited mass message within the 24-hour period via
the high-tech Mobile Data Unit screens would violate the
Board’s objective to “keep elections free of undue advantage
for any party.”
I therefore find that Objection 4 should be sustained. I find
that the Employer’s conduct deprived the employees of a free
and fair choice in the election, that the second election should
be set aside, and that a third election should be directed.
1. Objection 12
a. Original findings
The Union alleged in Objection 12 that at the Edsall Road
plant, the Petitioner, President Bishop, and Employer Attorney
Joan Book “were standing at the entrance to the voting area (lab
building) and shaking hands with employees who were going to
vote and who were forced to walk past them.”
Before the hearing, in its defense, the Employer stated [see
the Regional Director’s February 1, 2002 Supplemental Deci-
sion and Notice of Hearing, Board Exh. 1D p. 3]:

The Employer contends that the named individuals attended
the Edsall Road preelection conference, leaving when the
conference ended through the only door that led to the parking
lot. As they made their way to the parking lot, they replied to
pleasantries directed to them by employees, but these ex-
changes were isolated and innocuous.

Five witnesses gave widely conflicting accounts about what
occurred when Bishop and Book were leaving the lab building
after attending the preelection conference upstairs.
The Petitioner testified (Tr. 153) that he was watching
Bishop (with Book) from the time Bishop came from the lab
building until Bishop reached his car and drove off, and that he
never saw Bishop talk to anyone or shake anyone’s hand.
Far to the contrary, the Union’s recording secretary testified
(Tr. 26–29, 34) that when the poles opened at 6 a.m. on August
15, he was watching from a distance, saw Bishop and Book
standing at the entrance to the lab building, and saw both
Bishop and Book chatting and shaking hands with employees
waiting to vote, from 6:01 to 6:10 a.m.
After weighing all the testimony of the five witnesses, I
credit the part of the testimony of Employer’s witness, driver
Wayne Lowry, in which he testified (Tr. 136, 141) that when
Bishop and Book came out of the lab building, he asked them if
they were aware that the Union was passing out literature and
coming upon the property, and either Bishop or Book said they
were.
I credit the part of the Union recording secretary’s testimony
(Tr. 28, 38–39) in which he testified that a line was forming,
that he recalled seeing Willie Jackson and John Scruggs, two
employees he knew, that there was some communication be-
tween them and Bishop, and that each conversation lasted about
10 seconds.
Bishop merely recalled (Tr. 119) that Lowry “said good
morning to me, and stuck his hand out to me, and I shook his
hand.” I credit his testimony (Tr. 123–124) that Attorney Book
did not speak to anyone. I also credit his testimony (Tr. 119)
that it took him no “more than a minute, maybe two minutes” to
go from the lab building door to his car, that as he passed by
Jackson and Scruggs on the way, each of them stuck out his
hand and said good morning, and that he said good morning to
them.
Based on the credited evidence, I agree with the Employer
that President Bishop’s exchanges with employees waiting to
vote were isolated and innocuous. I therefore find that he did
not have any “sustained conversation with prospective voters
waiting to cast their ballots,” as required in Michem, Inc., 170
NLRB 362 (1968).
I find that Objection 12 should be rejected.
b. Employer contentions
In its brief (at 31–36), the Employer contends that it did not
engage in objectionable conversation with the employees out-
side the polling area. I agree.
CONCLUSIONS
Having found that Objections 1, 2, 4, and 5 should be sus-
tained, I recommend that the Board find that the objections
warrant ordering a new election and that it set aside the second
election and direct a third election.
Dated, Washington, D.C. August 27, 2002