Hickory Springs Mfg., Co.

HICKORY SPRINGS MANUFACTURING COMPANY Hickory Springs Manufacturing Company and Gener- al Drivers & Helpers Local Union No. 373, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 26-RC-5653 December 6, 1978 DECISION AND CERTIFICATION OF REPRESENTATIVE The Board has considered the objections to an election held January 6, 1978,' and the Regional Di- rector's report recommending disposition of same. It has reviewed the record in light of the exceptions and briefs, and hereby adopts the Regional Director's findings and recommendations 2 only to the extent consistent herewith. In Objection 2, the Employer alleges that there was "[h]arassment of employees eligible to vote in the representation election." The Regional Director con- cluded that a hearing should be held for the purpose of resolving certain of the issues raised by this objec- tion. The Petitioner thereafter excepted to this con- clusion contending that, even if the statements testi- fied to by employee witnesses were made and/or adopted by union officials, they did not constitute grounds for setting aside the election.' We agree. Each of the statements alleged to have been made or adopted by union officials related to what actions the Union would take in the event of a strike. Thus, at a union meeting one employee allegedly stated that if there were a strike and anyone crossed the line, they should be "taken out and have the dog- beat out of them." Another employee stated that, in the event of a strike, if company trucks were caught on the road, there were lots of teamsters and anyone pulling a load would find themselves in a gully. An- other employee cited a particular stretch of road where this could be accomplished. It is alleged that Union Representative Cecil Douthitt was present when these statements were made but did nothing to disavow or put a stop to them. At another meeting, presided over by the president of the Local Union, an employee asked what would be done in the event of a strike. The Local's president replied that what- The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was I I for. and 9 against. the Petitioner: there was I challenged ballot, an insufficient number to affect the results 2The Employer requested a hearing on Objections I. 3. and 4. In our opinion, the Employer's exceptions raise no material or substantial issues of fact or law which would warrant reversal of the Regional Director's recom- mendation to overrule those objections or require a heanng thereon. In the absence of exceptions thereto, we adopt, pro forma. the Regional Director's recommendation to overrule Objection 5 3The Petitioner denies that union officials engaged In such conduct. ever would be necessary on the picket line would be done. An employee stated that anyone who crossed the line would "get it." Another employee purported- ly stated that, if there was any stomping done, he would be in the middle of it. The Employer's witness said he echoed the sentiments of the last employee and added that if anyone bothered his family "that would be it." Finally, a question was raised about the nonunion firm which leased its trucks to the Em- ployer. The witness said that the Local's president stated that "Ryder would be taken care of." 4 None of the above statements allegedly made or adopted by the union officials involves any threat, or even hint of threat, towards employees based on how they would vote in the upcoming election. Thus the remarks neither relate to events surrounding or con- cerning the election nor were they calculated to coerce employees to vote for the Petitioner.5 It is also clear from the context of the remarks that they did not relate to a possible strike before the election but were made wholly in reference to some unspecified time in the future after the Petitioner became the em- ployees' bargaining representative and a strike was called.6 In short, the alleged remarks assumed union representation at the time the threatened action would occur. As we noted in The Great Atlantic and Pacific Tea Company. Inc.,' "In these circumstances, it is there- fore improbable that this type of verbal threat would have a coercive effect on the employees as to cause them to vote for the [Union]. 'For conduct to warrant setting aside an election, not only must that conduct be coercive, but it must be so related to the election as to have had a probable effect on the employees' action at the polls.'" 8 Thus, assuming, arguendo, that the statements were made as alleged by the Em- ployer, for the reasons stated above we find that the conduct complained of was not likely to have coerced the employees into voting in a particular manner and thus could not have affected the out- come of the election.9 Our dissenting colleague, Member Penello, accuses us of, among other things, condoning union coercion and restraint of and threats to employees during an The remaining evidence with respect to this objection relates to the conduct ,f rank-and-file employees outside the presence of union offictals. The Regional Director correctly concluded that that conduct was not such as to create a general atmosphere of fear and coercion. Indeed, such statements would more likely have the opposite effect. If ant at all. on emplosees who eschews violence. There is not the slightest hint that the Petitioner or the employees in- tended to engage in a strike prior to the election 177 NLRB 942 (1969) In support of this proposition the Board cited N 1 R B v Zeclrich ( om- pani. 344 F. 2d 101 1015 (5th Cir 1965) VWe note that in directing it heanng on this tbjectllon the Regional I)lrec- tor relles on Pr.ovinemal Hotue. In, 209 NIRB 215(1974) To the extent that that case is Inconsistent with our determination herein, it is overruled 641 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election campaign, and he claims that we thereby are encouraging overzealous unions to engage in threats of violence against employees during an election campaign. This, of course, is neither the intent nor the likely effect of our decision. If the Union here had threatened violence against employees for voting against it, we would, of course, have set this election aside. However, the evidence adduced by the Employer which, for purposes of this Decision, we deem to be true shows that prounion employees, in the presence of a union agent, threat- ened employees with violence if the employees crossed a picket line of the Union. Inasmuch as there was no picket line then in existence, nor was one imminent, the so-called threats were thus condi- tioned on the Union winning the election, the con- tract negotiations with the Union failing, the Union calling a strike, and some employees opting not to honor the picket line. With these contingencies standing between the threats and their possible exe- cution, we perceive little if any likelihood of the statements having any immediate coercive impact on the employees and the election results. Furthermore, the employees had it within their power to blunt the threats entirely by voting-in the secret-ballot election-against the Union. By so vot- ing, the employees could avoid altogether the pri- mary contingency on which the threatened conduct was premised; namely, a union victory. Indeed, we believe that the immediate effect of the Union's con- duct, if any, would be to cause employees to be re- pelled by it and to vote against it. Contrary to our colleague, the Union's forecasts of future strike mis- conduct were not reasonably related to the election and its results and, therefore, did not destroy the "laboratory conditions" in which Board-conducted elections must be conducted. The Great Atlantic and Pacific Tea Company, supra. Our colleague's reliance on Ciervo Blanco, Inc. & Blanco Venado, Inc.,"' and Servomarion of Columbus, Inc.," is misplaced. Ciervo Blanco involved threats of violence and actual serious strike misconduct by em- ployees, in the presence of union representatives, during the critical preelection period. Unlike this case, in Ciervo Blanco the union engaged in violent strike misconduct between May 28 and June 15 in support of its recognitional and bargaining demands. On June 15, the union and the employer entered into a private strike settlement which, inter alia, ended the strike and resulted in a Board-conducted election on July 11. The union won the election and the em- ployer filed objections. The Board there set the elec- 10211 NLRB 578, 579 (1974). 1 219 NLRB 504 11975). tion aside on the grounds that, notwithstanding the absence of violence for a period of 30 days immedi- ately before the election, the actual violence had oc- curred during the critical period after the petition was filed and before the election. In Servomation, su- pra, the alleged employee misconduct during the critical period also occurred in the context of a strike. There the Board adopted the Hearing Officer's find- ing, based on his credibility resolutions, that the al- leged conduct did not occur. However, even credit- ing the employer's witnesses, the Board was satisfied that the alleged employee misconduct did not create such an atmosphere of confusion and fear as to war- rant setting the election aside. While we agree with our dissenting colleague's statement that a violation of the Act during the critical period constitutes grounds for setting aside the election, he has cited no cases, and we have found none, which hold that a union's preelection threat of possible physical violence in the event em- ployees cross a picket line at some remote future time constitutes conduct proscribed by Section 8(b)(1)(A). Accordingly, we shall overrule the Employer's Ob- jection 2 and shall issue the following certification. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for General Drivers & Helpers Local Union No. 373, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: All over-the-road truckdrivers employed at the Employer's present Fort Smith, Arkansas, location: excluding all production and mainte- nance employees, office clerical employees, guards and supervisors as defined in the Act and all other employees. MEMBER PENELLO. dissenting: The majority opinion overrules the Board's deci- sion in Provincial House, Inc., 2 wherein the Board set aside an election because of a union representative's campaign statement to employees that "the Union had ways of taking care of people who tried to cross its picket lines." In this case, union representatives uttered and condoned a series of similar threats to employees from the very first day after the Union '1 209 N LRB 215 (1974) 642 HICKORY SPRINGS MANUFACTURING COMPANY filed its petition until shortly before the election. While Washington bureaucrats in their ivory towers may engage in endless pedantic discussions as to the precise meaning of such threats, the men and women of the workplace know what they mean and this dis- sent reflects an appreciation of that industrial reali- ty. 13 As mentioned in the majority opinion, there were two instances of threats condoned or espoused by high union officials. On the day after the Union filed its petition, a union meeting was held at the union hall among 12 to 14 of the approximately 20 employ- ees eligible to vote in the election."4 During that meeting, several prounion employees threatened their coworkers that, if there were a strike at the Em- ployer's premises, anyone who crossed a union picket line would be "taken out and have the dog- beat out of them"; that any employee who drives one of the Employer's trucks during a strike would find himself "in a gully"; and that a particular stretch of road would serve well for accomplishing the latter threat. Union Representative Cecil Douthitt was present when these threats were made and did not disavow them nor attempt to put a stop to the threats. Sometime thereafter during the campaign, about nine employees attended another union meet- ing over which the Local Union's president presided. An interested employee asked the union president what the Union would do in the event of a strike. The president replied, "[W]hatever would be neces- sary on a picket line." A prounion employee then joined in and warned that anyone who crossed a picket line "would get it." Another prounion employ- ee threatened that "if there was any stomping [on employees who crossed picket lines], he'd be in the middle of it." Finally, another interested employee raised a question about Ryder Truck Rental, a non- union firm which leases trucks to the Employer. The union president warned that Ryder "would be taken care of." In addition, the Regional Director described an- other threat of violent reprisals against employees as- serting their Section 7 rights. On a date shortly before the election, six or seven of the Employer's drivers were at a truckstop. During a conversation among I1 also dissent from the majority's adoption of the Regional Director's recommendation with regard to Objection I. That objection was based on the Union's policy of forfeiture of prepaid union initiation fees and dues in the event the Union lost the election. For the reasons set forth in my dis- senting position in Aladdin Holel Corp., d/b /a Aladdin Horel, 229 NL.RB 499 (1977), I find that the application of such a policy constitutes objectionable conduct and warrants setting aside the election. i¢ The facts set forth therein assume the validit) of the statements prof- fered by the Employer's witnesses to the Regional Director during his inves- tigation, since the majority has overruled this objection of the Employer without first proceeding to a hearing. I would have ordered a hearing on this objection the employees about the Union, an employee raised the topic of what the Union would do in the event of a strike. A prounion employee replied that there were ways to stop the Employer from operating during a strike and described how trucks could be burned and run off the road and how drivers could be pulled out of the trucks. No union officials were present during the conversation. The majority perfunctorily dismisses the relevance of this threat on the basis that it was uttered by a rank-and-file employee outside the presence of union officials." However, prior to this time, union officials had uttered and condoned threats that in the event of a strike it would do "whatever would be necessary on a picket line," including "beating the dog " out of employees who dared to cross a picket line, "stomping" on them, running their trucks into gul- lies, and generally "taking care" of those who, like Ryder, posed a threat to the Union's efforts. Thus, the threat by the prounion employee to about six of the Employer's drivers should also be attributed to the Union since it coincided with and likely resulted from the Union's espousal and condonation of threats of picket line violence. Notwithstanding the coercive nature of the above- mentioned threats by union officials and prounion supporters, the majority opinion overruled the Em- ployer's objection and certified the Union as the em- ployees' collective-bargaining representative. In sup- port of its action, the majority relies on the argument that none of the threatening statements "involves any threat, or even hint of threat, towards employees based on how they would vote in the upcoming elec- tion." The majority also contends that "the remarks neither relate to events surrounding or concerning the election nor were they calculated to coerce em- ployees to vote for the Petitioner." Finally, the ma- jority concludes that "the conduct complained of was not likely to have coerced the employees into voting in a particular manner and thus could not have affected the outcome of the election." As ex- plained below, this reasoning by the majority is over- ly simplistic and fatally flawed. The majority's legal distinction between threats that relate to the actual casting of ballots and threats that relate to future labor confrontations ignores sim- ple realities. Threats of violent reprisals for exercising basic Section 7 rights in the future are clearly de- signed to and inherentl) foster fear among employ- ees. A natural and probable effect of such fear is that employees will not only be restrained from exercising Section 7 rights in the future but also in the present. Stated somewhat differently, what employee would reasonably believe that the Union's policy of "beat- ' See fn. 4 of the majorits opinion 643 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the dog- out of [employees who opposed its efforts during a strike]" did not also apply to employ- ees who opposed the Union's efforts to gain certifica- tion? Moreover, the majority's legalistic hairsplitting also assumes that "employees make such nice dis- tinctions" 6 when bombarded by threats of bodily injury from the Union and its overeager supporters. In fact, the Board has never expected employees to coldly analyze each particular threat uttered during an election campaign. A practical result of the Union's threats of violent reprisals is the inhibition of any antiunion discussion and politicking by employees during the campaign. Clearly, this result has a devastating effect on em- ployee free choice in the election. Even the most ar- dent antiunion employees may have been restrained from wearing antiumion buttons, handing out anti- union campaign literature, and engaging in conversa- tions among coworkers about the relative benefits and detriments of unionization, especially when the Union's threats of ruthlessness and violence had been adopted fully by several supporters who seemed prepared to carry out that policy if necessary. The majority opinion also demonstrates a failure to appreciate the basic issue in any election case in which objections are filed-whether the "laboratroy conditions" of the election campaign were fulfilled.' Thus, the majority's suggestion that the Union's coercive threats of bodily injury will more likely have the effect of encouraging employees to vote against rather than for the Union totally ignores the basic issue in this case.' In that regard, it is patently clear from the foregoing that the "laboratory conditions" 16 Ciervo Blanco, Inc. d Blanco Venado, Inc., 211 NLRB 578. 579 (1974). 1 For example, in Ciervo Blanco. supra, the petitioner established and maintained a picket line in support of its demand for recognition For 6 days after the union filed its petition. picketers threatened and assaulted employees who attempted to cross the picket line. However. the parties entered into a settlement agreement whereby the union removed the pickets and the employer agreed to an election stipulation. There was no objection- able conduct for the 30 days before the election. The Regional Director found that the effects of the earlier objectionable conduct had dissipated since (I) the violence preceding the settlement agreement was directed to- ward the effectiveness of the picket line rather than toward influencing the election, and (2) there was a 30-day period of peaceful campaigning pnor to the election. However. the Board reversed, concluding that since the objec- tionable conduct occurred during the critical period the election should be set aside, regardless of the 30-day period of peaceful campaigning. The Board found that the fact that the violence was directed toward an object other than the employees' choice in the election was of no relevance. In that regard, the Board stated: "We have serious doubts that the employees made such nice distinctions." Id. at 579. See also Servomation of Columbus. Inc.. 219 NLRB 504 (1975), wherein the majority opinion stated: "Of course. if threats or violence generates an atmosphere of fear or coercion which per- sists to the date of the election and taints the conditions under which it is conducted, the election will be set aside regardless of the . . .end to which [the threats] were directed .... " Id at 506 (emphasis supplied). I See General Shoe Corporation. 77 NLRB 124 (1948). 19 Moreover, it is just as likely that employees who were previously unde- cided about how to vote were persuaded that there was little support against union representation and that literally the safest course was to hop on the union bandwagon. were thoroughly polluted by the Union's and its sup- porters' threats. Finally, the majority opinion fails to fully and fair- ly analyze the facts in this case when it broadly pro- claims that none of the threats "relate to events . . . concerning the election." It is self-evident from the questions asked by employees and topics discussed at union meetings that a significant issue in the election campaign was the Union's policy in the event a strike was called and the employees attempted to exercise their Section 7 rights to refrain from engaging therein. Thus, it is readily apparent that in order to support its conclusion the majority has attempted to fashion an explanation which somewhat disingenuously fails to consider all of the relevant threats to which the employees were subjected and all of the likely effects of the threats on the election campaign; which im- poses upon the employees the obligation of making subtle distinctions amid a torrent of threats; and which fails to address the basic issue of whether the "laboratory conditions" of the election campaign were destroyed. Rather, the standard for judging the Union's conduct in this case was set forth in Provin- cial House, Inc.,2 0 wherein the Board stated that threats of picket line violence in the future "[create the] impression that the Union could, and would, re- sort to whatever means-lawful or unlawful- [which] might be required effectively to exercise its power over employees. We do not believe that threats of this kind of raw exercise of power are con- sistent with the atmosphere necessary for the conduct of a free and fair election." 21 The practical effect of the majority's condonation of union coercion, threats, and restraint during elec- tion campaigns is indeed unfortunate for employees who will utilize the Board's election processes in the future. Surely, the majority opinion will encourage certain overzealous unions during election cam- paigns to openly flaunt their willingness to utilize their "raw exercise of power" to achieve their aims, as long as they are careful not to explicitly link 0 209 NLRB 215. '11 Id. at 215 216. I would similarly set aside an election if an employer threatened its employees with violent repnsals if the employees failed to cross a picket line and report to work. I am sure that my colleagues in the majority would agree with such a position There is also another proper approach which may be utilized in this case. The Board has found on numerous occasions that threats of picket line violence by a union against employees who seek to continue to work are unfair labor practices in violation of Sec. 8(b)(1HA) of the Act. Thus, ac- cording to Dall-7x Optical (Company. Inc., 137 NLRB 1782 (1962), conduct which constitutes interference, restraint, and coercion and thus violates the Act is, "a frtiior, conduct which interferes with the exercise of a free and untrammeled choice in an election." Id. at 1786-87. Although there are limited exceptions to Dal-Tex where the restraint and coercion is isolated in nature, it is clear that the threats in this case were uttered to most of the employees on several occasions. The faihure of the majority to apply this settled priciple is puzzling 644 HICKORY SPRINGS MANUFACTURING COMPANY threats of bodily injury to the employees' vote for union representation. MEMBER MURPHY, dissenting in part: In agreement with the Regional Director, I would direct a hearing on Objection 2.22 The statements al- leged as objectionable herein, if made or adopted by union agents, would warrant setting aside the elec- tion. It is difficult for me to understand how the majori- ty here can direct otherwise. I have seldom seen a case alleging more direct threats of property damage and mayhem prior to an election that this one. More- over, according to the Regional Director's report, either the union representative or the union president was present at least on two occasions when threats of physical harm were made and allegedly did nothing to disavow them. Instead, the union president on at least one occasion specifically reinforced the preelec- tion threats. Briefly, shortly before the election was held, vari- ous prounion employees made threats at the union meeting. For example, one employee threatened that if there was a strike and anyone crossed the line, "they should be taken out and have the dog- beat out of them.2 3 At the same meeting, another employee warned that in the event of a strike there were a lot of union members and "anyone pulling a load would find themselves in a gully." Agreeing with this, a third employee pointed out that there was a particular stretch of road which could be used for forcing trucks off the highway. These threats allegedly oc- curred in the presence of the union representative who said or did nothing to disavow them. It is also alleged that during another union meet- ing prior to the election the president of the Local Union was asked pointblank what would be done in the event of a strike. He allegedly replied that "what- ever would be necessary on the picket line would be done." In his presence, along the same lines, another employee volunteered that anyone who crossed the line "would get it." Still another employee emphasiz- ed that "if there was any stomping [he would] he in the middle of it." Finally, as the Regional Director points out, dur- ing a conversation among six or seven of the Em- ployer's drivers at a truckstop shortly before the elec- tion was held, the above threats were reemphasized. Specifically, when one employee asked "what the 22 would also direct a hearing on Objection 3 in order to ascertain whether the combined effect of the conduct alleged in Ohbjections 2 and 3 creates an atmosphere which destroyed the lahorator' conditlons for con ducting the election herein 23 The relevant portion of the Resport on Ojhections is attached as an Appendix. Union would do in the event of a strike," his cowork- er replied that "there were ways to stop a Company." This coworker then described "how trucks could be burned and run off the road and drivers could be pulled off the trucks." The majority somehow ignores all of these threats of burning and mayhem, contending that they did not influence the employees' choice at the polls be- cause the threats involved strikes and strikes do not occur, if ever, until after the union election has been held. But these threats were not limited. To the con- trary, they were specific and open-ended. The only conclusion that can be fairly drawn from the Region- al Director's report is that, if the alleged events in fact occurred, the union officials in this case and their adherents threatened violence and mayhem whenever "the Union" did not approve of employee or employer conduct-like, perhaps, voting against the Union in a Board-conducted election. The Regional Director, correctly relying on Provin- cial House, Inc.. 209 NLRB 215 (1974), find t'hat such statements, if made by union agents, would warrant setting aside the election. Thus, the Board there found that statements of this type constitute . . . a clear threat of forcible union reprisals against anyone who crossed a picket line estab- lished by the Union, thus creating an impression that the Union would resort to whatever means-lawful or unlawful-might be required effectively to exercise its power over employees. We do not believe that threats of this kind of raw exercise of power are consistent with the at- mosphere necessary for the conduct of a fair election. The majority overrules Provincial House and relies instead on an earlier case, The Great Atlantic and Pa- cific Tea Company, Inc., 177 NLRB 942 (1969), where a contrary result was reached on similar facts. In Great Atlantic and Pacific Tea Company, the Board found that the remarks were neither related to events surrounding the election nor were they calculated to coerce employees to vote for the petitioner. In my opinion, Provincial House was correctly decided. The difficulty with the holding in The Great Atlantic and Pacific Teat Comnpanl is that it completely ignores the likelihood, as noted in Provincial House. that threats of physical assaults will have a spillover effect. Thus. employees will assume that a union which is willing to assault employees with respect to crossing the picket line would also be willing to engage in such assaults with respect to any conduct which the union finds is contrary to its interest. including opposing it in the election. The result is that employees will be inhibited in expressing their actual views concerning 645 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation by the union during the organiza- tional campaign. It seems clear that in The Great Atlantic and Pacific the Board panel missed the point made in Provincial House, namely, that a threat of picket line violence in an election campaign signified the union's willing- ness to abuse physically employees who oppose it. Thus, it hypothesized in The Great Atlantic and Pacif- ic decision that it was "improbable" that the threat of picket line violence made therein would have had the effect of coercing the employees to vote for the union because such a threat (characterized euphemistically as a retort) likely referred to some future time after the union had been designated as bargaining repre- sentative and was engaged in a strike against the em- ployer. Indeed, there is nothing in this or either of the two cited cases which would indicate that such union misconduct would be restricted to any specific time period or situation, or that its occurrence depended only on the Union's prevailing in the election. Cer- tainly, there is no basis here for inferring that a strike would occur only if the Union won the election. No such statement was made, and unions have been known to strike although not the designated bargain- ing representative. Thus, my colleagues' assumptions that no strike was to occur prior to the election and the further one that no strike would have taken place unless the Union won are without evidentiary sup- port. Furthermore, both assumptions erroneously as- sume facts which might or might not be the case, and both cavalierly ignore other assumptions which can just as aptly be made from the Union's statement that in the event of a strike there might be violence to enforce it. For example, the Union could have meant that it would engage in a preelection strike, if neces- sary, to force employee support for it in the election; or that it would strike if it lost the election in reprisal therefor. In either of these situations, to the employ- ees a strike would mean that if they opposed the Union they might be assaulted. In either instance, the threatened action would be related to the election and would therefore have the tendency to interfere with the exercise of free choice by the employees. Accordingly, for the above reasons, I would re- mand Objections 2 and 3 for hearing. APPENDIX OBJECTION 2 The Employer presented several employee witness- es regarding remarks made at union meetings during the campaign and at a gathering of employees at a truck stop. One employee witness testified that, at the second union meeting, which the Union confirms occurred on November 11, 1977, at the union hall, there was discussion about the State right to work law. One employee allegedly stated that if there was a strike and anyone crossed the line, they should be taken out and have the dog- beat out of them. Another employee stated that, in the event of a strike, if com- pany trucks were caught on the road there were lots of Teamsters and anyone pulling a load would find themselves in a gully. Another employee cited a par- ticular stretch of road where this could be accom- plished. The employee witness stated that Union Representative Cecil Douthitt was present during this conversation and did nothing to disavow the re- marks or to put a stop to them. The employee re- called that 12 to 14 of the employees were present. Douthitt testified that he did attend this meeting. He could not recall any discussion of a strike and further stated that there were no threatening remarks made, to his knowledge. Another employee witness presented by the Em- ployer testified regarding another union meeting held during the campaign. The union official in charge of the meeting was president of the Local Union and is also a driver for another trucking concern. While the date was not certain, the Union concedes that the meeting was held within the critical period. Douthitt, the union official who attended all other meetings, stated that there was one meeting presided over by the local president. The Employer's witness testified that about 9 employees were present. During the meeting, the witness asked what would be done in the event of a strike and the local president replied that whatever would be necessary on a picket line would be done. Another employee allegedly stated that anyone who crossed the line would get it. An- other employee purportedly stated that if there was any stomping done he'd be in the middle of it. The witness says he echoed the sentiments of the last em- ployee and added that if anyone bothered his family, "that would be it." Finally, the witness testified that a question was raised about the non-union firm which leases trucks to the Employer. The witness says the local president stated that "Ryder would be taken care of." A third employee witness presented by the Em- ployer testified that on a date shortly before the elec- tion (after the date of the election had been made known) he and some 5 or 6 other drivers were at a truck stop and that, during a conversation about the Union, he asked what the Union would do in the event of a strike. Another employee allegedly replied that there were ways to stop the Company. He alleg- edly continued by describing how trucks could be burned, run off the road, and that drivers could be 646 HICKORY SPRINGS MANUFACTURING COMPANY pulled out of the trucks. It was conceded that no union officials were present on this occasion. Other than the above, the only incidents relied upon to support this objection involve two non-re- lated occurrences. One witness testified to an undated conversation, on his CB radio, with an unidentified driver for the same company. Allegedly, this witness, who was a card signer for the Union, was called a scab by this anonymous driver and, in turn, responded with an obscenity. There was no further confrontation with regard to this incident and no evidence the remark was attributable to the Union. A second witness testified to an incident occurring some two to three weeks prior to the election in which he discovered a live chicken perched upon his car trunk when he returned from a driving run. Upon removing the chicken, this witness observed a cut running the entire length of the rear window of his convertible top. There was no evidence presented to show this incident was related in any way to the or- ganizational activity. Neither of these incidents provides a basis for set- ting aside the election. The conduct of rank and file employees, specifical- ly oral threats in the absence of actual physical vio- lence, in order to warrant setting aside an election must be shown to have created a general atmosphere of fear and coercion.2 Judged by that standard alone, the remarks attributed to the employees at the three meetings described herein do not warrant setting aside the election. However, in two of the three meet- ings discussed above, union officials were present and made no attempt to disavow or to stop the al- leged threatening remarks. Further, in one meeting, the union official present allegedly participated in the discussion which centered on coercive strike ac- tivity. In The Great Atlantic and Pacific Tea Company, 177 NLRB 942, the Board was concerned solely with a union agent's remark, in response to a question regarding strikes, to the effect that Teamsters have been known to break arms. Reversing the Regional Director, the Board found such a remark not to con- stitute interference with the election. 2 Owens-Corning Fiberglas Corp.. 179 NLRB 219. In a more recent decision, Provincial House, Inc., 209 NLRB 215, a similar remark made by a union agent during a union meeting shortly before the elec- tion was found to constitute grounds for setting aside the election. Thus, it would appear that the precise involvement of union agent(s) in the incidents described in this objection are of crucial importance in resolving the issue herein. As the Union denies the allegations herein, I find that this objection raises material and substantial issues best resvolved on the basis of rec- ord testimony. OBJECTION 3 In support of this objection, the Employer pre- sented three employee witnesses. All three witnesses testified to the fact that a group of 10 to 12 drivers, all eligible voters in the election, were congregated 10 to 15 feet outside the door of the polling area when the polls were opened. After voting, a group dis- persed and returned after the polls had closed. In addition, all three witnesses testified that there were no union officials present during the polling time. One witness testified he heard only one conversation, or part conversation, from the group, in which one of the drivers asked what that old S.O.B. was doing in there (referring to the Employer's observer). Another driver responded that he was the company man. There was no evidence of any electioneering either inside the polling area or in the group waiting outside the door to vote. A second witness testified the only statement he heard prior to voting was, "Be sure to vote right." After leaving the polling area, someone allegedly asked him, "Did you vote right," to which he re- sponded he had. The third witness testified he heard two drivers he identified as union supporters make the statement that if the Union wasn't voted in, ev- erybody might as well find another job, that they would all be fired. This statement was not directed at any one person, but at the group as a whole. All of the employer witnesses testified that they had not been threatened in any way and no evidence of union agency was proffered with regard to any of the voters in the group. On the basis of the testimony of the proffered wit- nesses no evidence of electioneering has been found. Accordingly, it is recommended that objection 3 be overruled. 647