Rjr Archer, Inc.

RJR ARCHER, INC RJR Archer, Inc., Filmco Division and Freight Drivers, Dock Workers and Helpers Local Union No. 24, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. Case 8-CA- 10653 25 February 1985 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 1 October 1976 Freight Drivers, Dock Workers and Helpers Local Union No. 24, affili- ated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (the Union) was certified as the exclusive representative of a certain appropriate unit of em- ployees of the Respondent, following an election and the resolution of the Respondent's objections to conduct affecting the results of the election.' On 27 June 1977 the National Labor Relations Board issued a Decision and Order2 finding that the Re- spondent violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act by refusing to bargain with the certified Union and ordered the Respond- ent to bargain collectively with the Union. The Re- spondent refused to comply with this Order. The Respondent contended that the Board's certifica- tion of the Union was invalid. The Board petitioned for enforcement of its Order in the United States Court of Appeals for the Sixth Circuit. On 14 March 1980 the court denied enforcement of the Board's Order and re- manded the case to the Board with directions to hold an evidentiary hearing on the Respondent's al- legations of union misconduct during the represen- tation election.3 On 29 June 1981 the Board issued an Order re- opening the record and remanding the proceeding to the Regional Director for a hearing before an administrative law judge for the purpose of taking evidence pursuant to the court's remand. A hearing was held 7 December 1981 in Cleveland, Ohio, before Administrative Law Judge Robert W. Leiner, who issued the attached decision 26 Febru- ary 1982. The Respondent filed exceptions and a supporting brief, and the Union filed a brief in answer to exceptions. i Case 8-RC-10333 ( 1976), not published in Board volumes 2 230 NLRB 499 (1977) 3 617 F 2d 161 (6th Cir 1980) 335 The Board has considered the decision and record in light of the exceptions4 and briefs and has decided to affirm the judge's rulings, findings,5 and conclusions only to the extent consistent with this Decision and Order. In its objections the Respondent alleged that the Union interfered with the election by making threats of physical violence and retaliation to the employees if they did not support the Union. The Respondent further alleged that the totality of preelection conduct, whether or not attributable to the Union, prevented a free and fair election. The judge found that certain threats were made by em- ployees who were not agents of the Union. He found, however, that the threats were not widely disseminated nor did any actual violence occur. The judge concluded that an atmosphere of fear and coercion that would prevent a fair election was not created and recommended that these objections be overruled. The Respondent excepts to the judge's rulings. For the following reasons we find merit to these exceptions.6 The judge found that during the critical period a week or two before the election employee Gibson approached coworker Flowers and asked Flowers how he was going to vote in the election. When Flowers responded that he would vote no, Gibson told Flowers that he might burn Flowers' house and van if he did not vote for the Union. The judge found that Flowers told two coworkers of this threat before the election, and evidenced his considerable apprehension by leaving the Respond- ent's factory during working time to check the safety of his parked van. The judge noted that at least some employees had knowledge of this threat to Flowers, but concluded that because of the wit- nesses' uncertain testimony he could not determine just how widespread was the dissemination. 4 Along with its exceptions the Respondent filed a "Motion for Leave to Reopen the Record and Adduce Additional Evidence " Our disposi- tion of this case makes it unnecessary to consider additional evidence that might be adduced at a hearing Accordingly, the motion is denied We also deny the Respondent's motion to dismiss which had been re- ferred by the judge to the Board 5 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We also find without merit the Respondent's allegations that the judge's conclusions were "predetermined " Upon full consideration of the record, we perceive no evidence that the judge prejudged the case, made prejudicial rulings, or demonstrated a bias against the Respondent in his discussion or analysis of the evidence 6 In light of our decision we find it unnecessary to reach the Respond- ent's other objections to the election and exceptions to the judge's deci- sion 274 NLRB No. 49 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We disagree. While the testimony is somewhat vague as to precise dates, we find that it is suffi- ciently clear for us to conclude that the threat was widely circulated during the preelection period. Employee Williams testified that, before the elec- tion, he arrived at work before his day-shift start- ing time. Williams testified that a group of employ- ees, including "the general people" and "a lot of people . . . from the midnight shift," were discuss- ing the fact that Flowers had been threatened. Similarly, employee Grow testified that Flowers told him privately that Gibson had threatened to blow up Flowers' van if he did not vote for the Union. Grow testified that he was confident that he spoke to other employees of the threat, stating that "virtually everybody on the [midnight] shift was talking about it." Thus, the evidence estab- lishes that this threat was widely disseminated.' The judge also found that during the critical period employee Lanthan was threatened by em- ployee Gear. Lanthan was in conversation with several coworkers during the noontime break, and stated that he planned to vote against the Union. Gear, who was accompanied by employee Huth, responded, "You ought to think about it before you vote . . . things can happen to a vehicle or even to a wife and kids." This conversation recurred daily among Gear, Huth, and Lanthan, with Gear and Huth asking Lanthan whether he had "made it through the night." Compounding the severity of this express threat of physical violence,8 Lanthan testified that he received anonymous telephone calls at all hours of the night, which stopped about a week after the election. The caller hung up when Lanthan an- swered. While not specifying the time frame, Lanthan testified that he often told people that he had been threatened. During a representation election the Board must provide "a laboratory in which an experiment can be conducted, under conditions as nearly ideal as possible."9 If the employees' free choice is imper- iled by an atmosphere of fear and coercion the Board must set aside the election. It is not material that the apprehension is created by employees whose conduct cannot be attributed either to the employer or to the union.10 7 Absent proof to the contrary , Member Hunter would presume dis- semination of the threat Metz Metallurgical Corp, 270 NLRB 889 fn 2 (1984) 8 The Board does not consider lightly such threats of bodily harm even when addressed to one employee See Steak House Meat Co, 206 NLRB 28 (1973) 9 General Shoe Corp, 77 NLRB 124, 127 (1948) 10 We need not decide whether the employees who made the threats are agents of the Union or whether such conduct is attributable to the Union We find that these threats when viewed cumula- tively' i created an atmosphere of fear and coer- cion in which a fair election could not be conduct- ed. In these circumstances, especially where the election results were so close,12 we do not view the election as reflecting the free choice of the em- ployees. 13 On the basis of the foregoing the Respondent's objections are sustained. Accordingly, we revoke our prior Decision and Order and dismiss the com- plaint. We further vacate the certification, set aside the election, and remand the case to the Regional Director for the purpose of conducting a second election. ORDER The National Labor Relations Board orders that the Decision and Order in 230 NLRB 499 (1977) is revoked and the complaint is dismissed. The Board further orders that the certification issued to the Union in Case 8-RC-10333 is vacated, the election conducted 6 and 7 May 1976 is set aside, and the case is remanded to the Regional Director to con- duct a second election. [Direction of Second Election omitted from pub- lication.] 11 See Audiovox West Corp, 234 NLRB 428 (1978) 12 We note that a change of 2 votes out of 135 voters could have led to a different result See YKK (USA) Inc, 269 NLRB 82 (1984) 13 Member Dennis concurs in the result, emphasizing the following the misconduct must be more closely scrutinized where, as here, the elec- tion results were extremely close, NLRB v USM Corp, 517 F 2d 971, 976 fn 5 (6th Cir 1975), Gibson's, Gear's, and Huth's statements were not ambiguous , offhand comments, but rather were serious threats of reprisals for failure to vote for the Union, Gibson's threat to Flowers was dissemi- nated to at least three identified employees (Williams, Grow, and Nay) as well as others on the midnight shift, Gear's and Huth's threat to Lanthan occurred in presence of several coworkers, Gear and Huth "rejuvenated" the threat on a daily basis up to the election by asking Lanthan whether he had "made it through the night " See Westwood Horizons Hotel, 270 NLRB 802 ( 1984), and cases cited therein DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge. On June 27, 1977, the Board issued its Decision and Order (230 NLRB 499) concluding, inter alia, that RJR Archer, Inc., Filmco Division (the Company or Respondent) vio- lated Section 8(a)(5) and (1) of the National Labor Rela- tions Act by refusing to bargain with Freight Drivers, Dock Workers and Helpers Local Union No. 24, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) as the certified representative of the Company's production and maintenance employees (including ship- ping and receiving employees, plant clericals, and "chief operators") employed at the Company's Aurora, Ohio fa- cility The underlying certification of the Union as statu- RJR ARCHER, INC tory bargaining representative, upon which the Board's Order was based, was issued on October 1, 1976, when the Board issued its Decision and Certification of Repre- sentative (not reported in Board volumes) That decision and certification of the Union in the above-described unit also concluded that timely Company objections to the election and exceptions to the Regional Director's Report on Objections did not raise substantial and mate- rial issues warranting a hearing. Following a request by the Union about November 4, 1976, that the Company bargain collectively, the Company, on December 2, 1976, refused, and has thereafter continuously and admit- tedly refused to recognize or bargain with the Union. The relevant subsequent record events demonstrate that on December 10, 1976, the Union filed a charge al- leging violations of Section 8(a)(5) and (1) of the Act by virtue of the Company's December 2, 1976 refusal to bargain with it; and that on January 31, 1977, the Com- pany filed its answer to the complaint, issued by the Re- gional Director alleging violations of Section 8(a)(5) and (1) of the Act by virtue of the Company's refusal to rec- ognize and bargain, in which it admitted certain of the allegations of the complaint, but averred that Board cer- tification, following a defective election, was improper (for reasons which will appear hereafter) and that it was thus under no legal obligation to recognize and bargain with the Union. In the underlying Board-conducted election of May 6- 7, 1976, the tally of ballots showed that, of approximate- ly 144 eligible unit voters, 69 voters cast ballots for the Union and 66 cast ballots against the Union. The Compa- ny filed timely objections to the conduct of the election and the Regional Director investigated the objections. The Regional Director's Report on Objections, issued on July 1, 1976, concluded that the Company's four ob- jections failed to raise substantial and material issues of either fact or law and therefore were without merit, fur- ther concluded that no hearing on these objections was required; and recommended that the objections be over- ruled and that the Union be certified. As above noted, the Board agreed with the Regional Director in issuing its October 1, 1976 Decision and Certification of Repre- sentative. In accordance with the Board's procedure, upon the General Counsel's subsequent complaint alleging viola- tions of Section 8(a)(1) and (5) and Respondent's answer averring improper Board certification because the Union's misconduct in the election obviated any legal ob- ligation on its part to recognize and bargain with the Union, the Board, on June 27, 1977, nevertheless issued its above Decision and Order, inter alia, finding a viola- tion of Section 8(a)(1) and (5) of the Act, and directing the Company, on the Union's request, to bargain with the Union as the exclusive representative of the employ- ees in the aforesaid unit and to cease refusing to bargain with the Union Upon the Company's refusal to comply with the Board's Order, the Board petitioned for en- forcement of its Order in the United States Court of Ap- peals for the Sixth Circuit In its opinion of March 14, 1980, the court denied enforcement of the Board's Order and remanded the case to the Board with directions to hold an evidentiary hearing on Respondent's allegations 337 of union misconduct during the May 6-7, 1976 represen- tation election. NLRB v. RJR Archer, Inc., 617 F 2d 161 (6th Cir 1980) On June 29, 1981, the Board issued an Order reopen- ing the record, wherein it remanded the proceeding to the Regional Director to arrange for a hearing' on Re- spondent's allegations of union misconduct affecting the election. The Board's Order directed that the hearing be conducted pursuant to the Board's Rules and Regulations and thereafter that the administrative law judge prepare and serve on the parties a decision containing findings of fact based on the evidence received pursuant to the remand, conclusions of law, and recommendations to the Board. Pursuant to that Order of the Board, a hearing, on prior notice, was held before me in Cleveland, Ohio, on December 7, 1981. At the hearing, the Regional Director and the Company were represented by counsel, the Union by its secretary-treasurer. At the conclusion of the hearing, after the parties had the opportunity to adduce evidence and call witnesses and examine them both on direct and cross-examination, all parties waived final ar- gument, and thereafter the Company and the Union (by its attorney) submitted posttrial briefs which were duly considered. On the entire record in this supplemental hearing, in- cluding the briefs, and from my observation of the wit- nesses, I make the following FINDINGS OF FACT Pursuant to the court's mandate, the hearing herein was conducted pursuant to Rule 102 69(f) of the Board's Rules and Regulations The Company's four objections to the election (R.D. Exh. 3) are as follows- 1. Subsequent to the filing of the petition herein and prior to the election on May 6, 1976, the Peti- tioner [the Union], by and through its agents, repre- sentatives, adherents and others, coerced and re- strained employees and otherwise interfered with their right to a free and fair choice by threats of physical violence and retaliation if they did not sup- port and vote for the Union and assure its success at the polls 2. Subsequent to the filing of the petition herein and prior to the date of the election, the Petitioner, through its agents, representatives, adherents, and others, made and issued misleading and material misrepresentations concerning the contractual ac- complishments of the Petitioner and the wages and benefits to be gained through representation by the Petitioner at a time and under conditions and cir- cumstances which effectively denied the Employer an opportunity to rebut such misrepresentations 3 Subsequent to the filing of the petition herein and prior to the election, the Petitioner, by its agents, representatives, adherents, and others, ' The Board's Order adopted the court's decision as the law of the case 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD caused the Board's Notice of Election to be defaced by placing an X in the Yes box appearing on the Board's Official Sample Ballot, thereby indicating to eligible voters that the Board favored the choice of the Petitioner in the election held on May 6 4. By the foregoing and by other acts and con- duct, the Petitioner, through its agents, representa- tives, adherents , and others, interfered with, re- strained and coerced eligible voters in the exercise of their rights under the Act and destroyed the req- uisite laboratory conditions necessary for the voters to make a free, fair and reasoned choice in the elec- tion conducted herein. The evidence is uncontradicted that the election was held on Thursday, May 6, 1976, between 3.30 and 4.30 p in and thereafter , on the same night, between 11:45 p.m. and 12.30 a.m. on May 7, 1976 It was stipulated by the parties at the hearing that Kester "Hoot " Gibson and Gary Gear were two RJR employees at the Aurora plant, among others, who contacted Local 24 and ob- tained from Local 24 blank authorization cards, which they thereafter returned to the Union signed , and on the basis of which, in part, the Union petitioned for the in- stant election. At the opening of the hearing, and again in the brief, the Company moved to dismiss the underlying complaint herein , or to set aside the election or, alternatively, to direct a new election , on the ground that the passage of time itself since the May 6-7, 1976 election barred any usefulness to the continued certification or any order di- recting the Company to bargain with the Union; and, al- ternatively, that the 5-1/2-year period between the elec- tion and the instant hearing , due to Board and court delays, prevented the Company from effectively present- ing evidence which would show the Union's misconduct affecting the outcome of the election.2 At the hearing, I denied the Company's motion on the grounds that (a) the motion was outside the scope of the remand in that my function was to facilitate the adducing of evidence pursu- ant to the remand under the Board 's Order and the court's mandate and to thereafter draw conclusions and make a recommendation with respect to such evidence and conclusions ; and (b) in any event , to the extent that any of the Company's arguments related to the unfair- ness in Board or court rules and procedures , the Board's application of the facts to its outstanding Rules and Reg- ulations, or the Board 's and court's dilatory actions pre- venting it from adducing evidence in support of its ob- jections, I ruled then, and continue to rule, that such ar- guments be made to the Board and to the court of ap- peals rather than to me I therefore respectfully refer to the Board, in the first instance , and thereafter to the United States Court of Appeals for the Sixth Circuit, such of the Company's arguments asserting that the Board's Rules and Regulations are unfair (either per se or as interpreted) and the Board's and the court's dilato- ry processing of this case denied Respondent an opportu- nity to fairly adduce evidence. Objection 13 Objection 1 asserts that the Union's agents, representa- tives, "adherents and others" interfered with employee free and fair choice in the election by threats of physical violence and retaliation if the employees did not support and vote for the Union and assure its success at the polls. At the hearing it appeared that in the fourth objection, the Company was arguing that the entire course of con- duct surrounding the election , including the actions al- leged in all three objections, whether or not attributable to the Union, so interfered with the "laboratory condi- tions" insisted upon by the Board in the conduct of its elections that such actions prevented a free, fair, and rea- soned choice and require that the election be set aside. A former employee of the Company, Robert C. Flow- ers, in support of these objections , testified that in the period prior to the election, he owned a van of which he was particularly proud . In a period not greater than 3 weeks before the election , he had a conversation at a bar where he was drinking with coemployee Kester "Hoot" Gibson,' employed on the same midnight to 8 a.m. shift in the Aurora plant, wherein Gibson asked Flowers how he was going to vote in the election. Flowers answered that he was going to vote "No " (i.e., against the Union) Gibson said, "We'll burn your house down," and with regard to Flowers' van, "I might burn it if you don't go along [with the Union] ." Other than this testimony, Flowers' recollections were entirely vague. He said he laughed in Gibson's face at these threats, he could not remember whether this was the sole occasion on which Gibson mentioned burning the van , and he asserted that he might have told this to employee Nay but then said he could not recall and that he could not recall telling this story to a company supervisor, Benjamin Middleton. The evidence shows that nothing ever happened to the van, nor to any other Flowers' property or the property of any other employee, and that no physical act occurred with regard to any employee or the Company. Where Flowers asserted that Gibson was joking and was not se- rious, I do not credit such testimony in view of the testi- mony of other witnesses which demonstrated that Flow- ers did not understand it to be a joke. The Company's current employee, Donald R . Grow, credibly testified that he knew both Flowers and Gibson and that Gibson worked at Grow 's worktable . He testified that some 2 months before the election, after lunch , Flowers ap- proached him, looking pale. Flowers told him that he 2 The Company also states that the Regional Director's refusal to permit it access to 17 affidavits the Board procured in its investigation of objections from company employees similarly impeded the Company in its presentation of the case But see Sec 102 118 of the Board's Rules and Regulations The Company's formal prior request to the Regional Direc- tor for these affidavits under the Freedom of Information Act, 5 U S C § 552, was denied (R Exhs 1 -3) Cf Flagle Memorial Park, 247 NLRB 1397 (1980) 3 All testimony in this record was adduced through witnesses called by the Company 4 Gibson accompanied union agents to the National Labor Relations Board hearings in the underlying representation case The transcript, on ocasion , refers to "Hoot" Gibson as "Huth" Gibson This sometimes con- fuses the record since, independently , there is an employee mentioned in the transcript by the name of John Huth and there is no Huth Gibson, only Kester "Hoot" Gibson RJR ARCHER, INC had just been threatened with his van being blown up if he did not vote for the Union and that the threat came from Kester Gibson. Grow could not recall retelling this conversation to any specific employee, although "all [the employees] talked about it." He did not say when other employees spoke of it 5 He also testified with regard to a rumor in the plant that another employee (Don Wright) had ping-pong balls placed in the gas tank of his car. Grow recalled discussing the threat to Flowers which another union adherent, John Huth (who was not called to corroborate Grow's recollection), but whether this discussion occurred before or after the election was not shown. Grow also testified that neither Huth nor Gibson, both union advocates, was a union employee but that Gibson attended union meetings and distributed union pamphlets. With regard to Gibson 's attending union meetings, this information was gained from Gibson's statements because Grow did not attend any union meetings. Lastly, while I do not credit Grow's testimony that the conversation with Flowers occurred 2 months before the election (dates and even sequence of events, where they take place 6 years after the event, are particularly and notori- ously subject to error) but more proximate to the elec- tion, I do not find that this materially affects Grow's credibility. I do not, however, take this position concern- ing other testimony of company witnesses. Similarly, company employee William D. Nay testified that on the Monday before the Thursday, May 6, 1976 election, shortly after midnight, he had a conversation with Flowers in which Flowers told him that employee Gibson had threatened to blow up his van if he did not vote for the Union. Nay testified that Flowers looked scared and that he told Flowers that Gibson would not know how Flowers voted in the election and therefore Flowers had nothing to be concerned about. Flowers told him that he was still scared and might not vote. Nay further testified that he told employee Burl Smith and Supervisor Benjamin Middleton of this conversation but could not recall whether he told them of it before or after the election. He failed to corroborate Grow's origi- 5 Grow, in response to a leading question, said that coemployee Don Nay spoke of this threat to Flowers, but then testified he could not recall if Nay was one of the employees who spoke of it He also testified that he spoke to employee Huth about the incident Huth was not called to corroborate Grow and Grow did not say when he spoke to Huth While Grow thus contradicted himself on this point and responded affirmatively to leading questions, I believe his testimony supports a conclusion that some employees on his shift spoke of the incident The danger of leading questions on material issues (i e, the date of Flowers' telling Grow of the Gibson threat) appears in company counsel 's asking Grow if his conver- sation with Flowers occurred "during the week prior to the May 6, 1976 election" and Grow' s refusing the lead and placing it "probably two months before the election " Flowers' recollection of the threat placed it closer to the election In any event , there is no suggestion in Grow's tes- timony that any further discussion of the Gibson threat to Flowers, by or among other employees , including himself, took place before the election Thus, Flowers may have told Grow before the election, but when the other employees spoke of it is not shown Further, the affirmative evi- dence in the record shows that whatever discussion of the threat took place, it was not widespread on shifts other than the midnight shift on which Grow , Flowers, and Gibson worked because Smith on the 4 p in to midnight shift never heard employees discuss the threat , and Williams, on the 8 a in to 4 p in shift , heard of the threat from the midnight shift employees There is no showing that the matter was discussed on the day shift 339 nal testimony that Grow might have told him of the threat. Employee Burl Smith similarly testified that he could not recall whether this conversation with Nay concerning Flowers' van being subject to violence was before or after the election. Whereas, as above noted, Grow testified that almost all the employees on his shift discussed the threat, employee Smith did not hear any other employees mention the threat They worked on different shifts. Smith never spoke to Flowers of this matter Supervisor Benjamin Middleton testified that before the election, he saw Flowers leaving the plant. Flowers told him he was going to the parking lot to see his van and said that he had been threatened with the blowing up of his van if he did not vote for the Union. Middleton accompanied him to the parking lot where they inspect- ed the van and found no problem Middleton recalled that Flowers did not tell him who had threatened him but appeared very nervous. Middleton testified that em- ployee Don Nay spoke of the matter and that Nay ap- peared defiant of such threats and said that he would "like" to have them threaten him similarly. There is no showing when Nay spoke to Supervisor Middleton. Su- pervisor Middleton reported this threat to higher man- agement, apparently before the election, but there is no showing that management took the matter further. In addition to the above "Flowers' threat," company employee Larry Lanham testified that in a period of 1 to 3 weeks before the election, at the noontime lunchbreak, he had a conversation with other employees in the pres- ence of employees Gary Gear6 and John Huth. In that conversation, in the presence of other employees on the shift, he said that he would vote against the Union. Gary Gear responded- "You ought to think about it before you vote . . . things can happen to a vehicle or even to a wife and kids." Lanham told Gear- "If anything happens to them, you'll be the first guy I come to see." Lanham said that he had this conversation with Gear about once a day thereafter. He also testified that both Gear and Huth asked him, on a daily basis, whether he had "made it through the night," and that these questions were posed even after the election. Lastly, Lanham testified that he received telephone calls before the election at all hours of the night, which telephone calls stopped about I week after the election. He did not know who made the calls because the caller hung up immediately upon Lan- ham's picking up the phone Discussion and Conclusions with Regard to Objection 1 On the basis of the above testimony, I conclude that a week or two before the May 6 election (i.e., during the critical period) Flowers was asked by Gibson how he was going to vote in the election and that Flowers told him that he would vote "No." Gibson then told Flowers that he might burn up Flowers' house and van if he did not vote for the Union. I conclude, contrary to Flowers' testimony, that he did not consider Gibson's threat to be a joke and that Flowers was under actual apprehension 6 Gary Gear was one of two union observers at the election 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of damage to his van (which he prized) in view of the credited testimony of Supervisor Middleton that Flowers thereafter, during working time, sought to leave the fac- tory in order to ascertain whether any damage had been done to his van I also find that Flowers nevertheless voted in the election. I further find, on the credited testimony of Larry Lanham, that in the period of 1 to 3 weeks before the election, employee Gary Gear, who ultimately was one of two union observers at the May 6-7 election, while in the company of employee John Huth, told Lanham (who said he would vote against the Union) that he ought to "think about it before [he] vote[s] . . things can happen to a vehicle or even to a wife and kids." I further find, as Lanham testified, that he answered this statement by stat- ing that if anything happened to him or his family, Gear would be the first person that Lanham would hold re- sponsible. I further find that this conversation occurred between these persons regularly thereafter and also that Gear and Huth, both before and after the election, asked Lanham whether he had "made it through the night " I also credit Grow's testimony, while not crediting his recollection concerning the fact that it occurred 2 months before the election, that before the election, Flowers told him that he had been threatened by Gibson with the blowing up of his van if he did not vote for the Union, In view of Grow's vague and tentative testimony of mentioning this threat to coemployees, I find that he mentioned it to John Huth but not before the election. I find, however, on the basis of his testimony, that the threat was known to some other employees on his shift. How many employees knew, how large was the mid- night shift, and how many knew of the threat before the election are all unknown Grow's testimony is somewhat corroborated by Nay, who, on the Monday before the election, had a similar conversation with Flowers in which Flowers told him that Gibson had threatened to blow up his van. Nay mentioned this conversation to em- ployee Burl Smith Since neither Smith nor Nay could state that their conversation regarding the threat to Flowers was before the election, I cannot, and do not, find that Nay told this to Smith before the election. Smith never did speak to Flowers concerning the threat. Lastly, although employee Michael Williams' testimony was not persuasive, I find that the threat to Flowers' van was known to some employees in the plant because em- ployee Williams, corroborating employee Grow, testified he discussed this with Gear and Huth before the election. I conclude that Williams told Gear and Huth that if he had been threatened, he would have done something about it I am unable to conclude, however, on the basis of testimony from all the witnesses just how widely knowledge of any threat circulated among 145 unit em- ployees, or whether knowledge of any of the threats reached a large number of unit employees before the election. I also find that Lanham, Nay, Grow, and Smith all voted in the election Agency The evidence shows that Gary Gear was one of two union observers at the May 6 election; that Kester Union Agent Grof at the National Labor Relations Board hearing in the representation case in April 1976, and that both Gibson and Gear, two RJR employees at the Aurora plant, among other employees, contacted the Union and obtained union authorization cards which they returned signed to the Union, on the basis of which the Union petitioned for the instant election. There is no suggestion in this record that, as the company brief con- sistently asserts, either Gibson or Gear, or any other em- ployee or employees, was a member of an "in-plant orga- nizing committee" (whether formal or informal) which was either sponsored, condoned, tolerated, or known of by the Union.7 Similarly, there is no suggestion on this record that the Union knew of or tolerated, much less condoned or accepted, any statements made to employ- ees or anyone else by either Gibson or Gear. The Board rule is that when an employee serves as a union election observer, such as employee Gear herein, this does not constitute him an agent of the union (Cam- bridge Wire Cloth Co., supra, supplementing 236 NLRB 1326 (1978), and cases cited); nor is card solicitation (Gear and Gibson) sufficient to show agency status (Cambridge Wire Cloth Co., supra, and cases cited); nor does the fact that Gibson attended a National Labor Re- lations Board hearing with Union Agent Grof (even if he arrived with and sat with him) confer such apparent au- thority, without more, so as to cause Gibson or Gear to' become union agents thereby. Cf. NLRB v. Bosart Co., 652 F.2d 599 (6th Cir. 1980). I therefore conclude that neither Gibson nor Gear was an agent of the Union, that the Union neither authorized nor ratified any of their ac- tions; and that the Union engaged in no conduct, on this record, so as to confer apparent authority on Gear, Huth, or Gibson for any act or conduct Having found that the Union was not responsible for the statements of Gear and Gibson, and there being no assertions that any physical acts occurred, the question presented is whether the facts as found nevertheless re- quire that the election be set aside. The long-established Board rule is that the standard to be applied in determin- ing whether an election should be set aside on the basis of conduct not attributable to one of the parties is (Price Bros. Co., 211 NLRB 822, 823 (1974)): . . whether the character of the conduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free expression of choice of representatives impossible. See Hamilton Label Service, 243 NLRB 598 (1979); Zeigler Refuse Collectors, 245 NLRB 449 (1979). Where mere employees make generalized threats with regard to voting e g , "if you vote no for the Union, we are going to kick your ass" or "damage your car" (Zeigler Refuse Collectors, supra; Central Photocolor Co., 195 NLRB 839 (1972)), where there is no evidence of actual violence (Cambridge Wire Cloth Co, supra), the Board concludes that such statements of individuals, not acting on behalf of a party to the election, tend to have less effect upon voters than they would have had if they "Hoot" Gibson and employee David Knarr were with 7 See Cambridge Wire Cloth Co, 256 NLRB 1135 fn 18 (1981) RJR ARCHER, INC had been attributable to either party. Cambridge Wire Cloth Co., supra; Mike Yorosek & Sons, 225 NLRB 148, 150 (1976). On the other hand, here, there was a serious threat to Flowers' property in Gibson's statement that if Flowers did not vote for the Union Gibson might burn up Flow- ers' prized van and house, and proof of the threat is based on the testimony of a discharged employee (Flow- ers) who, apparently, is not to be rewarded by this testi- mony, though all repetitons of the threat, including his own, are hearsay. Price Bros. Co., supra. The Board has set aside elections based on threats by nonemployees, Sonoco of Puerto Rico, 210 NLRB 493 (1974), cf. Ameri- can Wholesalers, 218 NLRB 292 fn. 6 (1974) In the in- stant case, it should be noted that of 144 eligible voters and 135 net ballots, 69 were cast for and 66 against the Union. The evidence shows that in a period a week or two before the election, several employees were made aware of the fact that Flowers was threatened notwith- standing that only two employees testified as to the source of the threat. There is little or no evidence with regard to the issues of (a) how widely circulated the repetition of the Flow- ers' threat was, and (b) when it was circulated. The Board views these elements as important in deciding whether the mere employee threat was nevertheless likely to generate an atmosphere of such fear as to make employee expression in the election inconsistent both with the laboratory conditions on which the Board in- sists and the fact that the vote would not be a full and free expression of employee sentiment . Price Bros. Co., supra; Cambridge Wire Cloth Co., supra The most that can be said of Grow's testimony, however, and notwith- standing that "all employees spoke of [the threat to Flowers' van]" is that some employees on his shift spoke of it. There is no evidence of when these other employees spoke of it, i e , whether they spoke of it before or after the election. This is consistent with the testimony of Smith and Nay wherein Nay told Smith of the Flowers' threat but neither Smith nor Nay would say whether their conversation occurred before or after the election In short, the hard evidence of record shows that Gibson threatened Flowers 1 to 3 weeks before the elec- tion, that Flowers told employee Grow and Supervisor Middleton of the threat from Gibson sometime in the period of 1 to 3 weeks before the election, that Flowers told the same thing to William D. Nay in the same period; and that higher management did nothing about it. Further, although some employees may have spoken of the threat (but not necessarily who did the threatening) and notwithstanding that Nay told Smith of this matter, there was no proof that the Nay-Smith conversation oc- curred before the election or that the employees , in gen- eral, knew of and discussed the threat before the elec- tion. Particularly based on the testimony of Grow, who testified that he could not recall telling a single specific person of the threat that Flowers had relayed him not- withstanding that "all employees" spoke of the matter, there is no showing how many employees on his shift knew of the threat, when these generalized conversations took place, or whether employees on other shifts knew of the threat and knew of it before the election. 341 The only additional evidence with regard to an em- ployee threatening another employee (on the basis of the employee's sentiments to vote against the Union) is the repeated Gear threat to employee Lanham. Gear told Lanham, in the presence of employee Huth and perhaps employee Fred King, 1 to 3 weeks before the election, and repeatedly thereafter, that he should "think about" voting before he voted because "things can happen to a vehicle or even to a wife and kids." Notwithstanding that Lanham's answer to this threat was decisively defi- ant, the tendency of such a threat is serious. Further, notwithstanding that Gear also questioned Lanham re- peatedly, in the presence of John Huth, whether he had "made it through the night," there is no assertion that Lanham repeated this threat from Gear to anyone else or, in any case, that other employees were aware of it. Thus, in addition to Flowers being threatened and re- peating the threat to Grow and Nay during the critical period of I to 3 weeks before the election, there is the additional isolated threat of Gear to Lanham concerning Lanham's wife and children. As in Price Bros. Co., supra, the object of the threat (Flowers) took the threat seriously: In Price Bros. Co., the threatened employee purchased a gun, in the instant case, he visited the parking lot, accompanied by Supervi- sor Middleton, to see if his van was actually damaged. Here, we have at least three employees aware of the single threat from "Hoot" Gibson to Flowers, there is an additional threat to another employee, from Gear to Lanham, and testimony regarding the circulation of the threat to Flowers' van, or at least Flowers' van being threatened, among some employees on the midnight to 8 a.m. shift. As above noted, with regard to those employ- ees, it is unknown whether these employees spoke of it before or after the election, or both, and how many em- ployees were affected Even Grow characterized his dis- cussion of the threat with employee Huth as "bantering " I have reviewed the above Board cases,8 and I find that while the type of threats which Gibson made to 8 I am also aware of the Sixth Circuit's decisions in NLRB v Mr Porto, Inc, 590 F 2d 637, and NLRB v US M Corp, 517 F 2d 971, 975 (1975) In Mr Porto, The, supra, the Union itself was responsible for the acts of misconduct, including threats of physical violence, and there was a close election, as in the instant case , where a switch of only two votes would have altered the outcome The Sixth Circuit refused to enforce the Board's Order and remanded the case to the Board In US M Corp, where, as here, only employee, rather than union, threats were concerned (including a threat to burn down an employee's barn), only four votes separated the parties and the Sixth Circuit enforced the Board's Order In Porto there was a very small unit (nine voters and the election was won by the union six to three), whereas in Bostik there were 119 employees in the unit (here 145 in the unit) The court in Mr Porto distinguished Bostik because in Bostik the court held there were merely "isolated incidents" and "vague" and minor "damage" over a 3-month period Here, there was no physical damage or physical acts Even in Bostik, however, the court noted that as in Mr Porto a close election is a "factor" which de- mands that even minor infractions be scrutinized carefully While I be- lieve the present facts would be governed by Bostik, in any event, how- ever, and notwithstanding any contrary view of the Sixth Circuit, I must, with due respect to the court of appeals, be bound by the Board's view and the Board's rule Iowa Beef Packers, 144 NLRB 615, 616 (1963) The general Board rule appears to be that where, as here, the conduct is not attributable to a party, then it is the character and circumstances of the objectionable conduct rather than the closeness of the election which de- termines whether a general atmosphere of fear and reprisal existed war- ranting the setting aside of the election Central Photocolor Co, supra 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Flowers and Gear made to Lanham would arguably be the type of statements which might be expected to have been made, repeated, and disseminated among the em- ployees, perhaps carrying an impact beyond the person to whom the threats are directed (United Broadcasting Co., 248 NLRB 403, 404 (1980) (where the Board set aside an election which the votes were three for the Union and one against the Union and the Union acqui- esced in a blackball threat to one employee)), yet here, there was insufficient proof of (a) wide dissemination and (b) wide dissemination before the election In addition, the late Board authority, Cambridge Wire Cloth Co., supra, clearly holds and repeats the established rule that statements of individual employees (where the Union is not responsible), "not acting on behalf of any party to the election, would tend to have less effect upon voters than they would have had if they had been attributable to either party" (see Mike Yurosek & Sons, supra, and cases cited therein), particularly where, as here, and as in Cambridge Wire Cloth Co., there was a total absence of evidence of violence; the Board would find, as I do, that there was insufficient proof that the repetition of the Flowers threat and the Gear threat to Lanham was widespread before the election and, as in NLRB v. U.S.M. Corp., supra, that the threats were not sufficiently "substantial" in nature to create a general environment or atmosphere of fear and reprisal such as to render a free choice of representative impossible. Central Photoco- lor Co., supra, Price Bros. Co., supra. Therefore, in spite of the close election and the physical nature of the two threats here, both elements which under other circum- stances might militate in favor of a recommendation to set aside the election, since there is no proof of union re- sponsibility or wide dissemination before the election, I believe that the Board would and should rule that the Company has not carried its heavy burden of overturn- ing the election by showing a general atmosphere of fear and reprisal rendering a free choice impossible. Cf. NLRB v. Southern Metal Service, 606 F.2d 512 (5th Cir 1979), enfg. 236 NLRB 827 (1978); and particularly NLRB v. U.S.M. Corp., supra at 974-975, and cases cited therein ("this burden 'is not met by proof of . . . physi- cal threats. Rather, specific evidence is required, show- ing not only that unlawful acts occurred, but also that they interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election."' NLRB v. White Knight Mfg. Co., 474 F.2d 1064, 1067 (5th Cir. 1973)). Objection 2 The Company's second objection is that the Union made and issued misleading and material misrepresenta- tions concerning the contractual accomplishments of the Petitioner (the Union) and the wages and benefits to be gained through representation by the Petitioner at a time and under conditions which denied the Company an op- portunity to rebut such misrepresentations. At the hearing, Respondent offered in evidence (R Exhs. 7(a) and (b)) writings containing statements of working conditions at "Fashion 220," a neighboring em- ployer, a unit of whose employees is represented by the Union and is covered by a collective-bargaining agree- ment. The first of the documents (R. Exh. 7(a)) bears the title "Fashion 220 (compared to Filmco)"; the second (R. Exh. 7(b)) is entitled "Teamsters at Fashion Two- Twenty " Both documents, which were distributed, are the same; each contains 12 items.9 The evidence of record demonstrates that these documents were derived from the "Fashion 220 handbook," but discloses no con- nection between the Union and the circulation of these pieces of paper, copies of which were circulated among employees and placed on Respondent's bulletin board. Rather, the evidence shows, at most, that an employee of the Company procured the information appearing on these documents through a relative working at the Fash- ion 220 plant. The Company's administrative manager, Robert B. Harris, a supervisor at the company plants in Aurora and Huntsville, Alabama, testified that he possessed a copy of Fashion 220's collective-bargaining agreement with the Union since at least April 1976. Company Supervisor Benjamin F. Middleton testified that he first received a copy of Respondent's Exhibit 7(a) about a week before the election when an employee (Mike Williams) showed him the document. Employee Williams testified that in the period of 1 week to 3 days before the election, he found many copies of Respondent's Exhibit 7(a) on the lunch table and also at other places around the Aurora plant. He never saw who distributed them, but he discussed the document with Supervisor Middle- ton on the day that he discovered them, which would be on the Friday or Saturday or perhaps the next Monday preceding the Thursday election. The evidence also showed that employees discussed the material on Re- spondent's Exhibit 7(a) in evidence. Thus, if Supervisor Middleton and employee Williams are credited, and I credit them, Respondent had its Exhibit 7(a) in its posses- R Exh 7(a) is as follows Fashion 220 (compare to Filmco) 25,000 Dollar Major Medical Uniforms-Paid 12t Cost of Living This April Blue Cross Full Coverage 90 Percent-Major Medical (We have 80 percent) 5 days Funeral Leave Close Relative (3-day Other (Grandparent, etc )) 52 Weeks S&A at $100 Per Week (We get 39 weeks at $110) 7 Paid Sick Days 1-1/2 For Saturday (Regardless of Hours Worked) $11 Pension Plan (We Have $9) 10 Paid Holidays Hourly Wage is $6 23 R Exh 7(b) reads as follows Teamsters at Fashion Two-Twcnty Hourly Wage 6.23 Hour $25,000 Major Medical Uniforms Furnished 12t Cost of Living Negotiated In April Blue Cross Hospital Full Coverage 90 Percent Coverage Major Medical 5-Day Funeral Leave Close Relatives 3 days Others 52 Weeks A&D at $100 Per Week 7 Sick Days 1-1/2 for Sat $11 Pension 10 Holidays RJR ARCHER, INC sion about 6 days before the Thursday election. (Both Middleton and Williams mention "a week"). The document which was later distributed (R Exh. 7(b)) was allegedly not seen by the Company until about May 4, 1976.10 Supervisor Harris testified that on May 4 he got it from a shift supervisor. He did not testify of any knowledge of the first flyer (R. Exh 7(a)), which was clearly distributed prior to May 4. As I understand the Company's contentions, it asserts that the items listed in Respondent's Exhibits 7(a) and (b), in evidence, are material misrepresentations in the following three aspects: 1 The statement relating to the pension fails to explain that the $11 is the amount of the weekly contribution to the Fashion 220 pension fund, whereas the reference to the $9 represents only the monthly pension benefit for each year of service paid out by the Company. 2. The documents' assertion relating to wages does not indicate that the Fashion 220, 12 cents cost-of-living in- crease, negotiated in April, was actually included in the stated wage rate of $6.23 per hour and not in addition thereto. 3. The statement relating to the sick days does not in- dicate that the seven sick days at Fashion 220 are for proven illnesses, whereas the Company's five sick days are for claimed illnesses whether proven or not. Company Administrative Manager Robert B. Harris testified that he first saw the second flyer (R. Exh. 7(b)) on the morning of May 4, 1976. This would fall on the Tuesday before the Thursday, May 6-7 election. As above noted, he failed to testify concerning when, if ever, he saw the previously disseminated first flyer (R. Exh. 7(a)). He testified that on that May 4 morning, he went to the airport to pick up Company President James H. Cor- rigan, who was to twice address all three shifts on May 4 and 5 from a prepared speech. He then testified concern- ing when he discovered the alleged material misrepresen- tations in the second flyer (R. Exh 7(b)) and why they were not incorporated into Company President Corri- gan's speech- he first discovered the misrepresentations after President Corngan's second speech on the morning of May 5; and he discovered them after that speech when, for the first time, he compared the flyer with the Fashion 220 contract. He also testified that there were many meetings on May 4 and May 5 with regard to these speeches, but that no one suggested altering the speeches to reflect the misrepresentations in these two flyers because Company President Corrigan "had not had time to check every item against it [sic] and incorpo- rate it [sic] into the speech." Such testimony cannot stand, and I specifically reject it and Harris' credibility. If Harris did not discover the misrepresentations until after the second of Company 10 I do credit such testimony I also credit Supervisor Middleton and employee Williams that they saw Respondent Exhibits 7(a) about a week before the election I do not credit Harris' testimony if he suggests, by distinguishing between R Exh 7(a) and R Exh 7(b), that he was not aware of the substance of these flyers until Tuesday, May 4, 1976, when he first saw R Exh 7(b) I have concluded that R Exh. 7(a) came into the Company's possession about 6 days before the election and that it had about 5 days to act thereon 343 President Corrigan's two speeches (i.e., after the morning speech of May 5), then how could the decision be made not to "alter" (incorporate the misrepresented matters into) the speech (May 4 or 5) because the Company did not have time to check "every item." In short, based on Harris' self-contradictory testimony, i i part of which is that he discovered the alleged misrepresentations only after the second speech, it is clear that the misrepresenta- tions were discovered probably before the first speech and certainly before the second. Moreover, since Super- visor Middleton and employee Williams testified that they saw the first flyer (R. Exh. 7(a)) as early as a week before the election (and since the alleged misrepresenta- tions on R Exhs. 7(a) and 7(b) are the same), I conclude that the Company had the first flyer and actual knowl- edge of the alleged misrepresentations by Friday, April 30, 1976, not less than 5 full days before the election.12 Discussion and Conclusions on Objection 2 1. There is no evidence that the Union was responsible for promulgation or circulation of these two flyers; rather, the evidence shows it was the work of an em- ployee. Where the Company argues (Br. 26) that the Union never disavowed authorship or responsibility for these documents, that may be quite true. However, there would appear to be no need for denial absent some initial showing of responsibility 2. It is unnecessary to decide, as did the Regional Di- rector, whether these are substantial and material misrep- resentations or merely minor distortions having no real impact on the election within the meaning of the Board's governing rule in cases of misrepresentation Hollywood Ceramics Co., 140 NLRB 221, 224 (1962).13 In view of the fact that the Company had one of the documents (R. Exh 7(a)) in its possession about a week before the elec- tion (6 days before the election i.e., on Friday, April 30, 1976), Respondent had a clear opportunity to make an effective reply at least by the following Monday. The 11 Harris' testimony appeared always to include "I believe" in his an- swers This practice, however unintentional, did not support his credibil- ity 12 The Company's brief (p 24) states that the Company learned of the misrepresentations 2 days before the election, i e , May 4 This contra- dicts Harris, who placed it after the second speech on May 5, i e , too late for Company President Corrigan to speak of it No attempt was made, in any event, to correct the misrepresentations when the Company discovered them by distributing truthful statements or otherwise 13 In Hollywood Ceramics the Board stated at 224• We believe that an election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party from making an effective reply, so that the misrepresentation, whether deliberate or not, may reason- ably be expected to have a significant impact on the election In passing, I observe that were it necessary to rule on the substance of the alleged misrepresentations , I would find that the "misrepresenta- tions," if any, were not the work of the Union and were insignificant and, at worst, a matter of ambiguity and inartfulness rather than false and ma- terial Tanforan Park Food Purveyors Council v. NLRB, 656 F 2d 1358 (9th Cir 1981) In addition, in regulating the conduct of elections, the Board has long distinguished between the conduct of parties and the conduct of employ- ees Boston Insulated Wire, 259 NLRB 1118 (1982) Third party conduct is given less weight Robert's Tours, 244 NLRB, 818, 823 (1979), and cases cited 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact that another document (R Exh 7(b)) was circulated only 2 or 3 days before the election and at a time when Respondent, arguendo, could not effectively reply to the matter is irrelevant since the two documents are the same. I have concluded that the Company knew of the first flyer by April 30 Surely it had the opportunity to incorporate corrective statements in Company President Corrigan's speeches to the three shifts on May 4 and 5 It not only failed to do so, but it failed on May 3 to 5 to attempt to reach any large group of employees by any means And even if Respondent had no opportunity to address its employees in a mass speech 1 day before the election, as it appeared to argue at the hearing, because of the rule in Peerless Plywood Co., 107 NLRB 427, 429 (1953), it was nevertheless in no way prevented from dis- cussing the misrepresentations even in Respondent's Ex- hibit 7(b), which was circulating 3 days before the elec- tion, with its employees by passing out leaflets or speak- ing to them directly NLRB v. Silverman's Men's Wear, 456 F 2d 53 fn. 4 (3d Cir. 1981). In NLRB v. Silverman's Men's Wear, the court held that even 36 hours is enough time to contact employees, without regard to the advan- tages of a speech to massed employees prohibited within 24 hours of the election under the Peerless Plywood rule. Moreover, in Silverman's Men's Wear, supra, as the court observed, half the employees were on layoff at the time the employer became aware of the alleged misrepresenta- tion, and it was held, in an admittedly smaller unit, that there were other ways to reach employees other than by captive-audience speeches. Here, I find that the Compa- ny long possessed the Fashion 220 contract and had ample time to correct any misrepresentation-about 5 days before the election 14 I conclude, therefore, and recommend same to the Board that, as a matter of law, it find that whatever mis- representations appear in the flyers which documents were identical in substance, they are not documents for which the Union is responsible and were circulated about 6 days before the election. Five full days was an adequate time to respond to any such misrepresentations. The Company's Third Objection The Company objects and asserts that the Board's notice of election, posted on the bulletin board in its 14 In NLRB v Silverman 's Men's Wear, the court held that 36 hours was sufficient time to contact employees , albeit it noted that they were hard to reach because half of them were on layoff In the instant case, the Company concedes that it had more time than the employer had in Silverman's Men's Wear to contact its 144 employees, that it failed to do so Having made such a concession, it advances no credible reason for its failing to do so (Br 24) When it learned of the distribution of the flyers, just two days before the election, Company officials were simply too preoccupied with other pre-election details to make a careful comparison and to effec- tively communicate the truth to a significant members of eligible voters (emphasis added) What other details caused this preoccupation? Why could the Company not reach a significant number of voters? The Employer, it seems to me, here offers vague conclusionary statements where hard reasons are re- quired in this disputed area As above noted , however, I have not cred- ited the Company's version of the facts even as to the 2 days It had the alleged misrepresentation at least 5 full days before the May 6-7 election and, I further conclude, knew of the assertions and had full and timely opportunity to respond lunchroom, was repeatedly defaced by the Union's plac- ing an "X" to the "Yes" box appearing on the Board's official sample ballot therein, thus unfairly suggesting to the voters that the Board favored the Union, Allied Elec- tric Products, 109 NLRB 1270 (1954). Company witnesses testified that they first discovered the defacement on the sample ballot in the posted notice of election about 6 days before the election and removed it at once. Thereaf- ter, the Company replaced the notice of election with a new document bearing a new sample ballot, that also was defaced by someone writing in an "X" in the "Yes" box. There was no dispute that employees saw the docu- ment and it appears that it was posted at the time of the election No testimony linked any such conduct to the Union. While the defacement of an election notice by an agent of either party normally warrants setting aside the elec- tion, Mademoiselle Shoppe, 199 NLRB 983, 984, 990 (1972), where the defacement of the sample ballot cannot be directly attributed to the Union or any of its agents, as in the instant case , the election cannot be set aside on the ground of the defacement of the sample ballot. More- over, in the instant case the evidence shows that compa- ny supervisors and all employees had access to the bulle- tin board in the lunchroom and it is not at all clear who defaced the sample ballot or, more specifically, that the Union, directly or indirectly, was responsible for these acts. On the basis of these findings, I recommend to the Board that this objection be overruled. See Cambridge Wire Cloth, 256 NLRB 1135 (1981). The Company offers no precedent for the setting aside of an election where employees (or, as here, unknown persons) may have placed an "X" in the "Yes" box on the sample ballot . Rather, it suggests that language in Building Leasing Corp., 239 NLRB 13 (1978), resolves the question ("especially where one of the parties .. . sug- gests to the voters that one of the choices is endorsed by the Board") The Company argues that the Board, in using the word "especially" implies that even where a non- party suggestively defaces the ballot, there would be a similar abuse of the Board's processes requiring the elec- tion to be set aside. The language in Building Leasing Corp. may well be too broad-and arguably broad enough to maintain an exegetic position It is too narrow and weak a reed on which to hang a radical expansion of Allied Electric: to defacement by nonparties To sum up, the evidence at the hearing established only that there were physical threats uttered in the criti- cal period by two employees, which threats were heard by at least several other employees, particularly on the night shift There is evidence that employees on at least one other shift did not discuss the matter On the grounds stated above, I cannot find that the apparently limited repetition of these threats by employees to em- ployees created such a general environment of fear and reprisal as to render a free choice of representative im- possible Rather, despite the closeness of the election and the threats of particular bodily harm or property harm, I conclude, on the basis of Board rule, that these threats had less effect on the voters than they would have had had they been attributable to the Union, and that their RJR ARCHER, INC 345 existence and repetition was not so widespread as to sub- stantially affect the outcome of the election. Moreover, there was a serious question as to when repetition among the unit employees occurred with regard to the threats: whether before or after the election. In this regard, I have determined that the Company has failed to prove that the substantial repetition among other employees oc- curred before the election and therefore in the critical period. On the basis of the foregoing findings of fact and the entire record in the case, including the briefs, I make the following CONCLUSIONS OF LAW 1. The threats of physical violence and retaliation to employees' property and persons, found herein, are not attributable to the Union and were not so widespread as to create a general environment of fear and reprisal which would render the free choice of representative im- possible. 2. The Company failed to prove that the Union was responsible for making the sample ballot in the posted Board notice of election with the "Yes" in the appropri- ate box; and, in any event, the defaced sample ballot in the posted notice of election in the company cafeteria was in such a place and the circumstances of the "Yes" box marking occurred under such circumstances that, on this record, it cannot be inferred that unit employees were reasonably under the impression that the United States Government or the National Labor Relations Board endorsed the Union by the appearance of the "X" mark in the "Yes" box, thus giving the Union a partisan advantage. 3. Neither the promulgation, distribution, nor dissemi- nation of written literature portraying wages and other conditions of employment at the Company's neighbor, "Fashion 220," is attributable to the Union; but, assum- ing, arguendo, both that the Union is responsible there- fore and that there are material misrepresentations ap- pearing thereon, there was proof that the Company had sufficient time prior to the election to make an effective reply to any such material misrepresentations and failed to do so. 4. None of the above objectionable acts or conduct in- dividually, nor any of the above conduct taken collec- tively, demonstrates that the Union engaged in such mis- conduct or that the conduct of employees or other per- sons created a general atmosphere of fear and reprisal so as to render a free choice of representative impossible. [Recommendation omitted from publication.]