General Truckdrivers Union, Local 980

GENERAL TRUCKDRIVERS UNION, LOCAL 980 General Truckdrivers, Warehousemen and Helpers Union, Local 980 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Glen W. Thornton Landis Morgan d/b/a Landis Morgan Transportation and General Truckdrivers, Warehousemen and Helpers Union, Local 980, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Cases 20-CB-1825 and 20-RC-7982 June 30, 1969 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS Fanning and Jenkins On April 2, 1969, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled :onsolidated proceedings, finding that Respondent Union had not engaged in certain unfair labor practices alleged in the complaint and recommending that these allegations be dismissed. He also found, in Case 20-RC-7982, that certain acts of sabotage committed by unknown persons prior to the election of March 23-24, 1968, frustrated "a rational uncoerced expression of choice"' in the election. He therefore recommended that the results of the election be vacated. Thereafter, the Union filed exceptions to the Trial Examiner's Decision and a supporting brief and the Employer filed cross-exceptions and a brief in support thereof, and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Trial Examiner's Decision, the exceptions and the briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Additionally, the Board directs that a new election be held. ORDER Pursuant to the provisions of Section 10(b) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint in Case 'Al Long, Inc, 173 NLRB No 76 579 20-CB-1825 be, and it hereby is, dismissed in its entirety. IT IS FURTHER ORDERED that the election conducted in Case 20-RC-7982 on March 23 and 24, 1968, among certain employees of Landis Morgan d/b/a Landis Morgan Transportation at its Ukiah, California, establishment be, and it hereby is, set aside. (Direction of Second Election 2 omitted from publication.] 'in order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company, 394 U S 759, decided April 23, 1969 Accordingly , it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 20 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed TRIAL EXAMINER'S DECISION STATEMENT OE THE CASE MARTIN S BENNETT, Trial Examiner This matter was heard at Ukiah, California on January 22 and 23, 1969. The complaint, issued October 7, and based upon a charge filed March 28, 1968, by Glen W. Thornton, an individual ' alleges that Respondent Union, General Truck Drivers, Warehousemen and Helpers Union, Local 980, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America had engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act This alleged conduct includes, in an election context, attempting to stage a fight with employer representatives in the presence of employees about to vote; pushing and shoving an employee about to vote and directing him to vote for the Union; predicting that trucks operated by employees opposed to the Union would be damaged; and blocking the entrance to the polling area. By order dated October 7, 1968, the Regional Director for Region 20 ordered consolidated with the foregoing a hearing on objections to an election conducted in Case 20-RC-7982 in a unit of all truckdrivers, mechanics, lubemen and tiremen, with certain exclusions Pursuant to a Stipulation for Certification upon consent election, this election was held on March 23 and 24, 1968, and won by the Union, 22 to 18. Objections to conduct affecting the results of the election were filed by the employer and over-ruled by said Regional Director. Exceptions thereto were filed by the Employer and, on September 6, 1968, the Board held that certain of the objections raised substantial issues of fact and directed a hearing.' It also directed that a determination be made as to "the union affiliation and union representative or agent status, if any, of employee Delbert Lee Rand."' And an employee of the employer, Landis Morgan d/b/a Landis Morgan Transportation 'There were also four challenged ballots The Regional Director sustained one challenge and recommended that no resolution be made of the remaining three The Board's order is silent as to this aspect, and I deem that issue not to be before me 'Identified in the transcript as James Rand 177 NLRB No. 51 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Regional Director noting that the two cases involved a single overall controversy and in part the same conduct, duly ordered the cases consolidated . Briefs have been submitted by the parties. A motion by the General Counsel to correct certain minor errors in the transcript is hereby granted. Upon the entire record in the case, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Landis Morgan d/b/a Landis Morgan Transportation, a sole proprietorship with its principal place of business at Ukiah, California, is engaged in the general statewide drayage of lumber and plywood and performs services valued in excess of $50,000 per annum for concerns located outside the State of California . I find that the operations of the Employer affect commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED General Truck Drivers, Warehousemen and Helpers Union, Local 980, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The Employer has approximately 50 employees, operates 38 to 40 trucks and was unorganized prior to the period material herein.Its president and direct operator is Landis Morgan . Organizational activity was undertaken by Respondent Union and a petition for an election was filed in Case 20-RC-7951 on a date variously fixed herein as January 18, 19, or 23 , 1968. This was withdrawn for reasons not definitively established in the record and an identical petition, that involved herein , was filed on February 8. The conduct attacked by the General Counsel and the Employer took place in the period prior to the election held on March 23 and 24 which the Union won by a margin of 22 to 18. B. The Alleged Representative Status of Jim Rand Basic to the positon of the General Counsel in the unfair labor practice case is the establishment of union responsibility for the conduct under consideration herein. Reliance is placed here on the acts of Jim Rand, an avowed union supporter for, as noted, the Board has directed that a determination be made as to his "union representative or agent status." Rand was a driver for the Employer and was active in the distribution and procurement of union authorization cards. There is not an iota of evidence that he was on the payroll or the Union or that he was reimbursed for his efforts; indeed, the record demonstrates otherwise. The General Counsel has relied on several incidents in support of his position. (1) Joseph Day,' a night dispatcher for the Employer who was excluded from the voting unit , testified that within 1 week preceding the election , Organizer Kenneth Gillie of the Union visited his home in search of a fellow worker named Dugan who lived with Day. Gillie made some comments about the benefits of unionization and stated that many dispatchers belonged to the Union. Day joined in the talk and Gillie told Day that an attorney for the Union could assist him with a personal problem. Some 15 or 20 minutes after Gillie 's departure, Jim Rand appeared at the Day residence . He entered laughing and announced that Gillie had just visited his, Rand's, home and commented that he, Gillie, "figured you guys were shook up." Rand then added that he, accordingly, had decided to pay Day and Dugan a visit "and shake you up a little bit more." This talk demonstrates that Gillie and Rand, on the latter's statement, were in contact with each other. This Gillie freely admitted , testifying that he held conversations with Rand during the course of the campaign . And it is clear that Rand was active in organizational activities. However, Gillie further testified, and there is no evidence to the contrary, that Rand was never authorized to represent the Union, that he was paid no money and that he, Gillie, would have had to clear such an arrangement with the executive board of the Union , something he had not done. Rand testified similarly as to the lack of authorization and the absence of payments . I find no evidence here to support the position of the General Counsel. (2) Bobby Sullivan , a driver for another concern, would on occasion meet Rand at truck stops . On one such occasion, prior to the election, according to Sullivan, Rand stated that "Finally, we are going to get the union in at Landis." Again, after the election, Rand announced that "finally we got the union in"; that he, Rand, was responsible for this; and that he had done likewise at another named concern. Rand admitted telling Sullivan, after the election, that "we" won the election , but denied assuming any responsibility therefor , particularly inasmuch as he was not on the union payroll . He denied taking credit for the organization of the other employer and claimed that all he had done in this area while in its employ was to sign a card. In sum , even on the face of the testimony for the General Counsel, there is presented what amounts at best to bragging about one' s purported role in an organizaitonal campaign . Moreover, it is readily apparent that agency may not be established solely on the basis of naked conclusory statements by a purported agent. N.L.R.B. v. Sea-Land Service Inc., 356 F.2d 955 (C.A. 1); Taxi-Drivers Union (Morse Taxi and Baggage Transfer, Inc.), 174 NLRB No. 1; and Carpenters Local Union No. 944, (Interstate Employers Association), 159 NLRB 563, 566. (3) Richard Wade, a driver for the Employer , similarly testified that he learned of the union organization campaign about January 18 . Together with other drivers of the employer, he was waiting to load lumber when Rand commented that Wade was likely to vote against the Union . Later that day, at a restaurant, Rand announced to a group of drivers that "he had got the cards," that he was "responsible" for obtaining the signatures and that he had forwarded them to the Union. Wade also testified that Rand repeatedly told him that he knew Wade would vote against the Union and that he, Rand, had "helped to organize" two other named plants. Here as well, and for the reasons previously stated, I see no support for the position of the General Counsel. GENERAL TRUCKDRIVERS UNION, LOCAL 980 581 Treated below is the issue whether certain alleged acts of sabotage have, per se, independently of union sponsorship or direction, destroyed the ideal laboratory conditions for a free, objective and uncoerced choice of a bargaining representative (4) Similarly, testimony attributing to Rand in early January the statement that he had joined the Union and had obtained a number of authorization cards was presented by Charles Grivette who also testified that he heard Rand telephone representatives of the Union on three or four occasions. Further examination of Grivette ultimatley diminished his claim to one telephone call prior to the election from Grivette's home by Rand to an unidentified union representative in another community Grivette's driving license had been suspended and in this call Rand declared that if Grivette's license was not retrieved, he, Rand, "would throw the vote the other way." Grivette has not seen Rand engage in any other discussions with union representatives. Here as well, I see no probative evidence of agency I find, therefore, that Rand did not enjoy "union representative or agency status" with the Union at the time material herein. If the term " union affiliation" is construed to mean union membership, it is undisputed that Rand had been a member of the Union for some years, although more recently on a withdrawal card. If the term is construed to mean that he was an agent in any way of the Union, in the terms of the issues considered herein, there is no evidence to support this theory. And, there is no evidence of union ratification of any of his conduct. Treated hereinafter are the Employer's objections to conduct affecting the results of the election, the first of which relates to "union predicted acts of sabotage " As will appear, there was sabotage but these alleged predictions emanated solely from Rand and the evidence with respect to him has been detailed above. I find, therefore, at this point, that there were no "union predicted acts of sabotage."' C. The Giiiie-Brewer Incident The General Counsel has relied upon four allegations in the unfair labor practice case, one of which took place at a preelection conference on March 23, 1968, some minutes before the polls opened. The scene was a separate parts room inside the shop area. This room had a door and window, the ballot box was located therein and employees intending to vote formed a line in the shop area. Present at this meeting were Board Agent Phillips; Landis Morgan, president of the Employer, David Miller 'Employee Charles Grivette testified that at the second union meeting, 1 or 2 weeks before the election, Secretary-Treasurer Maxwell of the Union told the assemblage that those who voted against the Union would not be around very long as "they could blackball them from the union " and they would not be driving While placing substantially all the employees as present, including Organizer Gillie, his testimony is silent as to Rand's presence Rand testified that he attended only one meeting and that on this occasion Maxwell announced that it was unlawful for the Union to interfere with an election , that employees had the right to cast a negative vote and that the Union was required to accept them as members Maxwell testified similarly that he spoke at two meetings and told the employees that with a union shop , the Union would represent all employees and not j ust adherents He denied threatening loss of employment to antiunion voters While Maxwell was corroborated by Rand, I deem a resolution of the conflict unnecessary, because on either version I see no support for an argument that it demonstrates Rand's agency and Lee Brewer of the Redwood Employers Association, John Hempsmyer, then the purchasing agent for the Employer and its observer; Kenneth Gillie, an organizer for the Union and its agent; and employee Arthur Swayze, observer for the Union. They discussed the election and Gillie asked if the Employer would stipulate that four named employees were eligible to vote; Morgan replied that he would not Gillie asked the same question of Brewer and he also replied in the negative. This refusal angered Gillie who threw down upon a desk a clipboard he was holding, advanced upon Brewer and offered to fight him. Brewer merely stared at Gillie, replied that Glllie was lucky and Agent Phillips intervened at this point.` As Respondent Union points out, an evaluation of the incident should be made in the context of the physical capabilities of the participants. Gillie was 61 years of age, less than 6 feet in height, manifestly not in the best of physical condition and substantially - blind. More specifically, he is blind in his left eye and, at the time, had marginal vision in the other because of a cataract. And, as Gillie uncontrovertedly testified, Brewer was aware of the state of his vision. As Gillie put it, and there is no evidence to the contrary, he could neither read nor drive. Gillie knew who was in the room, but' could not see their faces, inasmuch as anything more than 15 inches distant was a blur. Indeed, he needed a companion to escort him to the polling area. One might well speculate that he barely knew in which direction he was rushing. Brewer, who did not testify, was a much taller and heavier person under 40 who had played professional football. This perhaps underlines Brewer's comment that Gillie was "lucky" he had not carried out an attack upon Brewer. In any event, Gillie apologized to the Board agent immediately after the incident. Employee Glenn Thornton and several other employees were working in the shop and at least several employees were also waiting in or entering the shop area to vote.' The thrust of this allegation is that prospective voters might have been intimidated had they observed the incident. But, on balance, this dispute ended quickly And there is some question as to the extent this was heard or seen, because of a partially blocked doorway from the parts room and because of shop noise. Moreover, in view of the briefness of the incident and the obvious mismatch, I view the potential for intimidation of a seasoned group of truckdrivers waiting to vote as indeed remote. I shall, therefore, recommend the dismissal of this allegation. D Other Incidents Of the three remaining allegations, one is that James Rand, as agent for Respondent Union, told employees that the equipment of any employee who did not support Respondent Union would be damaged. There is conflicting evidence as to statements made by Rand which I deem unnecessary to resolve at this point. For, as found, there is no substantial evidence to support a finding that Rand was an agent of Respondent Union or that the Union authorized or ratified any conduct or threats by him 'This finding is based upon the testimony of Morgan , Glllie, Thornton, and Hempsmyer which does not differ in basic details Hempsmyer, in particular, no longer in the employ of the Employer , impressed me as an objective witness 'Morgan placed four employees, including Thornton , as working in the shop prior to the incident, but, directly thereafter, only one, Edward Jennings, was present According to Thornton , Jennings was servicing a truck S82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Evidence was introduced concerning two other incidents. One allegation was that on March 23, Respondent Union, by its agents Leonard Powell and Grover Door, pushed and shoved an employee waiting to cast his vote near the polling area and directed him to vote for the Union. The other allegation involved conduct on March 24 by alleged Agents Powell and Guy Richison' which threatened employees by blocking the entrance to the polling area. Totally apart from a consideration of the facts, there is a complete failure of proof that any of these three were agents of Respondent Union. Each was an employee of the Employer and apparently eligible to vote in the election. They were not employees of the Union, or on its payroll and there is no evidence of authorization or ratification of their conduct by Respondent Union. The General Counsel has argued that the conduct by these three employees resulted from the "continuing effect" of Gillie's abortive fight prior to the opening of the polls. Stated otherwise, ostensibly coercive conduct by employees who supported the Union was the "natural outgrowth" of the Gillie incident at the preelection conference and Respondent Union is therefore responsible for the conduct of its supporters in the polling area during the election. Addressing myself to the unfair labor practice case, I find this boot-strap theory far too tenuous. I shall therefore recommend that these allegations be dismissed. In view of the foregoing findings, I shall recommend that the unfair labor practice case be dismissed in its entirety. IV. THE OBJECTIONS The Board directed a hearing on Objections 1, 4, 5, 6, 7, and 8 by the Employer . At the hearing, I granted a motion by Respondent Union to dismiss Objection 5 for failure of proof that a named employee, Jennings, had been coerced and threatened in the exercise of his right to vote. Objection 7 relates to the abortive Gillie-Brewer encounter before the opening of the polls and has been treated above . As noted, the incident was quickly ended and it impresses me as relatively minor and inconsequential in nature . Moreover, the picture of an elderly near blind man challenging an ex-professional athlete who towered over him would more likely tend to impress an observer as ludicrous rather than coercive and would hardly tend to improperly influence him in the exercise of his franchise. I find that this objection has no merit. Objection 8 relates to an inadvertent attempt by Gillie and Business Manager Shannon of the Union to enter the polling area on March 24 shortly before the scheduled close of the polls at 10 a .m. Glen Thornton , a mechanic, who had no official role in the election, but was apparently not enamored of the concept of union representation , was at work in the shop. He testified that he observed Gillie and Shannon enter the shop at 14 minutes to 10 and approach the parts room where the voting was taking place . Thornton hastened to them and explained that the polls had not closed . Gillie replied that his entrance was timely, according to his watch . Thornton suggested that he check the clock on the wall, but this Gillie could not see. Thornton then told Gillie that he would have to leave, took him by the arm and escorted him out the door . Gillie and Shannon left, entered their 'Appearing in the transcript as Richardson vehicle some distance away and awaited the close of the polls. On the way out, Gillie did greet some employees who were milling about the entrance and the entire incident took but several minutes. Thornton testified, erroneously as will appear, that an employee was casting his vote and that another was entering to vote. Thornton was substantially corroborated by comechanic Roy McKee who was also at work as to Gillie's entrance and departure but not as to any pending voting. The testimony of employer-observer John Hempsmyer who was not at work, unlike Thornton and McKee, impresses me as more reliable as to the status of the voting He testified that Gillie returned to the polling area some 5 to 7 minutes early. The Board agent pointed this out to him and Gillie immediately left, commenting only that the results would be known in a few minutes. Hempsmyer further testified that the plywood window of the parts room was closed and visibility out from the balloting area was obtainable only through the door. He further testified, significantly, that all but two employees had then voted and that 35 to 40 minutes had elapsed since the last ballot was cast. These two employees never did vote and Landis Morgan observed one of them, Ray Russell, standing outside with a group of men after the close of the polls on this day. It is undisputed that there was no one waiting in line to vote. Shannon testified that he drove Gillie to the polls for the counting of the ballots, Gillie's visibility preventing his driving . As they entered, they were met by a man, apparently Thornton, who pointed out that the polls would not close for 2 minutes. Gillie basically agreed with Shannon, noting that when their attention was directed to the clock on the wall, he, Gillie, could not see it. As is apparent, there was no argument on this occasion and the union representatives left promptly upon request. Moreover, all those who cast ballots had previously voted. While one of the two nonvoters was outside, the record is silent as to whether or not he was a union supporter, an antiunion employee, or was even desirous of voting. There was no interruption of the balloting; indeed, there was no further balloting. This impresses me as a technical violation at best, with no obvious effect on the balloting and no tendency to affect it. I shall therefore recommend that this objection be overruled. Damage to and Sabotage of Company Equipment and Products As a predicate to a consideration of Objection 1, it is noted that the Employer regularly services its trucks in its own shop. Oil is changed every 3 weeks and lubrications are performed weekly on a schedule not publicized to the drivers. These trucks contain oil in three areas: (1) the main transmission (2) an auxiliary transmission and (3) the rear end. Each of these has a fill plug, a drain plug, and an inspection plate plug. During normal servicing , the drain and fill plugs are removed but not the inspection plate plug. All servicing of this equipment is done by Edward Jennings who works evenings, Saturdays and Sundays. Prior to January 1968 and subsequent to the election, Jennings encountered no problems with these plugs. Commencing in January, he discovered loose inspection plate plugs on two occasions, loose drain plugs six or seven times, and one or two loose fill plugs. The inspection plate plug is normally not touched ' during GENERAL TRUCKDRIVERS UNION, LOCAL 980 servicing. As for the other plugs, he noticed excessive dripping of oil and discovered that these were loose. Had any of the trucks departed on,their long runs they would have rapidly lost oil and extensive permanent damage would have been inflicted. According to mechanic Glen Thornton, a number of unusual occurrences took place in the latter part of January. Having encountered difficulty with the auxiliary transmission of Truck 21, his investigation disclosed that a steel stud 1-1/2 inches long and 3/8 of an inch in diameter foreign to the transmission had been inserted. This was forced between the gears and some teeth from the gears had broken off. This perforce had been inserted through the opening normally used for lubrications. On the following day, the driver of Truck 22 reported that he had lost all his grease. The bolt on the inspection plate plug had come out and this bolt is normally not touched, during servicing. Its removal requires considerable effort and the use of a wrench. This repair required new bearings and replacement of the top main shaft. In his years as a mechanic, he had not previously encounterd this. In I~ebruary, the transmission of Truck 31 was "caught" or frozen. Inspection revealed that an additive had been put in the grease causing it to break down. This required replacement of three gears in the main shaft. Three or four days later, the rear end of the same vehicle went out; inspection disclosed that an additive was present causing the grease to turn to rubber and it was necessary to use a torch to remove this. Mechanic Roy McKee, who has many years of experience, testified how Truck 28 lost its oil drain plug in December., By coincidence, he had previously attempted to remove this plug with a 15-inch wrench and it did not budge. The extent of the damage on this occasion is not disclosed. During January, he was working on Truck 28 and noticed that oil was running out. Investigation disclosed that the plug was finger loose and ready to fall out. This plug is normally loosened for an oil change, but it was 2 weeks since the previous oil change and the truck had been run daily; the oil on this occasion would have been run out in 15 minutes. The gauge would not reflect the loss of oil and the engine would have promptly burned out for lack of oil when the truck was taken out. President Morgan testified how on January 18 the engine of Truck 18 "froze up." Inspection revealed that the rings were broken and that there was a foreign substance in the oil. On several occasions thereafter, foreign substances were found in the oil. Morgan also testified generally that from January 18 on, eight engines broke down and that in four or five cases a foreign additive smelling like pine tar was found in the oil. No more than several of these could be termed a normal number inasmuch as some of the trucks had been recently overhauled. The cost of a major overhaul is $2,000 to $2,500 per truck. The repair for Truck 21 cost $400 to $450. The cost of Truck 22 was $300 to $350. The front differential repair on Truck 31 cost $600 to $650 and the transmission cost was approximately $500.' 'It is not clear , but this appears to have occurred at the outset of the organizational campaign. '1 am not unaware that at least some of these incidents preceded the filing dates of the petitions and I also deem it unnecessary to determine whether the first or second is to control . But they were a matter of discussion among the employees during the crucial postpetition period. And, as the Board recently pointed out, "While we agree with the Hearing Officer that the rule in Ideal Electric and Manufacturing Company. 134 583 Underlying the foregoing is the fact that the Employer normally, in addition to maintenance, builds trucks from scratch. In the first quarter of 1967, it built two, whereas in the corresponding period in 1968 the men were forced to devote all their time to maintenance because of excessive breakdowns. .There was also specific direct testimony concerning the sabotage of equipment of drivers who refused to commit themselves favorably to union organization and this became common knowlege throughout the company. Driver Dick Wade testified, and I find, that Rand spoke to him on January 18 in the presence of 6 or 7 drivers and referred to him as a "no vote." One or two weeks before the election, according to Driver Charles Grivette, he heard Rand say to a group of drivers that he knew the identity of the drivers who would vote no in the election and that he would "get them."" The company trucks consist of a tractor and two trailers. Each trailer is equipped with an air brake and it is necessary to use them to stop loaded equipment. The brakes on the trailers are adjustable by valves on the trailers and are adjusted by the driver upon loading, according to his load. They are normally not checked again and no one else has any duty or function with respect to them. Between March 13 and the election, the following took place. On a Friday, Wade drove to a mill, loaded his truck for a trip to Los Angeles and duly adjusted the brakes on the trailer. He left the truck in the Company yard in Ukiah and had a day off; no one used the truck during this interval. On the following morning, he departed on his trip intending, however, to initially have coffee at a truck stop 3-1/2 miles south of the outskirts of Ukiah. It is necessary to make a sharp right turn to enter these premises. He applied his brakes as he did so, but discovered that they would not stop the truck in time. Wade ultimately brought the vehicle to a halt and discovered that two valves feeding air to the trailers had been turned off. He opined that had this happened on a down hill grade he would have lost control of the vehicle. The truck gauges do not reflect the loss of pressure to the trailer. After this incident, Wade promptly reported it to all drivers he encountered as well as the personnel in the employer's truck yard. Mac Uptain uncontrovertedly testified, and I find, that a week or 10 days before the election, Rand asked him to sign a union authorization card and Uptain refused. He was also solicited at this time by employee Arthur Swayze who later was an observer for .the Union at the election. Uptain in essence refused, stating that he knew no one who wanted to sign and that his vote in the election was his own business. After these conversations and prior to the election on March 23 and 24, the following incident took place. Uptain drove his truck to Eureka and put on a load of lumber. He checked and adjusted his brakes on this NLRB 1275, 49 LRRM 1316, forbids specific reliance upon pre-petition conduct as grounds for objecting to an election , such conduct may properly be considered insofar as it lends meaning and dimension to related post-petition conduct." Stevenson Equipment Co, 174 NLRB No. 128. "Rand denied threatening Wade, but admitted that he had heard such a rumor He admitted that Wade asked if he, Rand, had threatened to sabotage his truck and Rand, on this occasion, denied authoring the statement. According to Wade, this took place on March 13 or 14 and Rand stated that anyone who voted against the Union deserved to have his equipment sabotaged . Wade did state that anyone who approached his truck would be shot by him. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasion, returned to the Company yard and left his rig there. On the following day, he departed on his trip. Some minutes later, Uptain was in a left turn lane preparing to enter the freeway on the outskirts of Ukiah and discovered that his brakes did not function. Fortunately, there was no vehicle in front of him or passing at that moment on the freeway and he managed to turn into the freeway, although his left front wheel did strike a concrete divider. The vehicle ultimately rolled to a stop and he discovered that the air valves had been shut off to the trailers, in the same manner as those on the Wade truck. Uptain had heard of another such incident and testified that the men discussed among themselves the incidents of sabotage outlined above. The record also discloses that Uptain, subsequent to his first contact by Rand, asked Rand for a card, signed and mailed it in. It does not reveal whether he took the step after he had trouble with his brakes. Driver William Quasne was solicited several times to join the Union by Swayze. On each occasion, Quasne would not agree to do so and replied that he would use his own mind and that it was each person's choice. Thereafter, and apparently on February 28, Quasne was entering the freeway with a very heavy load of lumber on two trailers. He had previously checked the equipment and ascertained that everything was in operating order. On this occasion, he realized that the back trailer was pushing against the tractor. He managed to stop the vehicle and discovered that the air valve had been turned off in the rear trailer. Having rectified this, he delivered the load and, on his return trip, ostensibly ran out of gas. He had previously checked the truck and ascertained that both tanks were full. His inspection revealed that someone had turned the crossover switch so that one tank had been depleted but that the other was full. Quasne reported to a number of drivers what had been done to his truck. There is evidence that these drivers and other drivers upon learning of these incidents thereafter regularly checked their air valves on each trip, contrary to past practice. While I do not find that union agents engaged in this conduct, it is significant that these incidents involved drivers who refused to commit themselves to the Union." The types of sabotage engaged in were vicious in that equipment was damaged, great potential existed for complete loss of expensive equipment and merchandise and, more particularly, the drivers could have been seriously injured or killed. And this conduct was rapidly and extensively publicized among the employees and the potential electorate. To dispose of this on the theory that agency was not established invites a finding that the Employer or his well wishers deliberately sabotaged this equipment in order to have a basis to upset a union victory. But, our industrial society has long since progressed beyond the era of the agent provocateur. Stated otherwise, there is a most viable presumption that "There is one alleged exception Rand testified that on his return from a trip to Los Angeles he experienced a vibration in the gear box When it was drained, metal shavings were found therein an employer who is making a living through the use of expensive equipment does not sabotage it in order to taint a union' s cause in a Board election. It is true that all but two eligibles voted . But the issue is how coerced were the votes of the others. And, in relative terms, it would certainly seem that this type of sabotage would be more apt to taint and influence the prospective voter than peaceful electioneering which the Board now recognizes as having such an effect . Milchem, Inc, 170 NLRB No. 46. To conclude, I believe that this conduct prevented an election "in an atmosphere conducive to a determination of the uninhibited preference of employees ." Rebmar, Inc., 173 NLRB No. 215. It likewise frustrated "a rational uncoerced expression of choice." Al Long, Inc., 173 NLRB No. 76. As has been pointed out, certain elements, regardless of their source, may make an impartial choice impossible and thus invalidate an election . N.L.R.B. v. Staub Cleaners , Inc., 357 F.2d 1 (C.A. 2). Realistically speaking, and in order to near if not arrive at the highly desired laboratory conditions for an election, this is the most workable approach . Parties to an election and their well wishers are thus put on notice that prohibited conduct engaged in by anyone may forfeit an election . This then will serve to put a premium on proper deportment by all parties. Because of the foregoing considerations, I find merit to this objection and shall recommend that it be upheld. In view of the findings made above , I deem it unnecessary and superfluous to treat with other alleged acts of sabotage such as nails driven into plywood, an instance of not protecting a load against a sudden rain and traffic violations . I similarly deem it unnecessary to treat with certain instances of electioneering allegedly falling within the policy enunciated by the Board in Milchem, Inc., supra. But cf. Harold W Moore & Sons, 173 NLRB No. 191, and Marquil International Security Service, 173 NLRB No. 192. CONCLUSIONS OF LAW 1. Landis Morgan Transportaion is an employer whose operations affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union, General Truck Drivers, Warehousemen and Helpers Union, Local 980, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union has not engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. RECOMMENDED ORDER In view of the foregoing findings of fact and conclusions of law, it is recommended that the unfair labor practice complaint be dismissed in its entirety. It is further recommended that the results of the election conducted on March 23 and 24, 1968, among the employees of the employer be vacated.