National Brands Of Ft. Lauderdale, Inc.

NATIONAL BRANDS National Brands of Ft. Lauderdale, Inc.-and Freight ]Drivers, Warehousemen and Helpers Local 390, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Case 12-CA-10675 5 December 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON Upon a charge filed by the Union 15 April 1983, the General Counsel of the National Labor R ela- tions Board issued a complaint 5 May 1983 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 18 May 1982, fol- lowing a Board election in Case 12-RC-5981, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and 102.69(g), amended Sept. 9. 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 1 June 1982, the Company has re- fused to bargain with the Union. The Company timely filed its answer admitting in part and deny- ing in part the allegations in the complaint. On 13 June 1983 the General Counsel filed a Motion for Summary Judgment. On 15 June the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company's answer admits its refusal to bar- gain, but attacks the validity of the certification on the basis of its objections to the election in the rep- resentation proceeding. The General Counsel argues that all material issues have been previously decided. We agree with the General Counsel. The record, including the record in Case 12- RC-5981, reveals that an election was held 19 De- 935 cember 1980 pursuant to a Stipulated Election Agreement. The tally of ballots shows that of ap- proximately 44 eligible voters, 21 cast valid ballots for and 17 against the Union; there were no chal- lenged ballots. After investigation, the Regional Director on 30 January 1981 issued a report recom- mending that the Company's objections to the elec- tion be overruled. The Company riled exceptions and on 18 December 1981, the Board adopted the Regional Director's recommendations that Objec- tions 2, 3, and 4 be overruled, but remanded the proceeding for a hearing on Objection 1. The hear- ing officer recommended that the objection be overruled and the Union certified. The Company filed exceptions to the hearing officer's report. On 18 May 1982 the Board adopted the hearing offi- cer's recommendations and certified the Union as the exclusive bargaining representative of the em- ployees in the stipulated unit (not reported in Board volumes). By letters dated 25 May 1982 and 10 March 1983, the Union requested the Company to bargain. By letters dated 1 June 1982 and 31 March 1983, the Company refused to bargain. It is well settled that in the absence of newly dis- covered and previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues the Company raises were or could have been litigated in the prior representation pro- ceeding, including the untimely claim that the Union made material misrepresentations to unit em- ployees in a letter dated 15 December 1980. The Company does not offer to adduce at a hearing any genuinely newly discovered and ;previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding.' We therefore find that the Company has not raised any issue that is properly litigable in 1 While Member Babson did not participate in the underlying represen- tation case, for the foregoing reasons he joins in granting the General Counsel's Motion for Summary Judgment without regard to the merits of the issues which the Respondent now attempts to litigate 277 NLRB No. 89 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this unfair labor practice proceeding.2 Accordingly we grant the Motion for Summary Judgment.g On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Company, a Florida corporation, sells and distributes beer at wholesale from its facility in Deerfield Beach, Florida, where it annually derives sales in excess of $50,000 from employers who, in turn, meet Board jurisdictional standards other than indirect inflow or indirect outflow: We find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. H. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 19 December 1980, the Union was certified 18 May 1982 as the collec- tive-bargaining representative of the employees in the following appropriate unit: All drivers and warehousemen employed by the Respondent at its 50 Lock Road, Deerfield Beach, Florida location, excluding all office clerical personnel, managerial, confidential em- ployees, guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain 2 The Company filed a motion to reopen the record , dated 10 March 1981, on the basis of alleged misrepresentations the Union made in a letter dated 15 December 1980 The motion was denied 17 March as un- timely, as the letter was neither newly discovered nor previously unavail- able to the Company . The Company filed a motion, dated 7 April 1981, for review and for compliance with the Board's Rules and Regulations, which was denied 30 April. In its response, the Company contends that the Board's Associate Ex- ecutive Secretary has no standing to deny motions , and that he improper- ly placed a copy of the motion to reopen in the informal case file rather than in the formal file of the proceedings , as required by the Board's Rules and Regulations The 30 April denial , though signed by the Associ- ate Executive Secretary, was, as it states, issued "by the direction of the Board " Although the 17 March denial does state that the Company's original motion had been retained in the "informal case file," both docu- ments were placed in the formal file s Chairman Dotson did not participate in the underlying representation case However, he would grant the General Counsel's Motion for Sum- mary Judgment At this juncture, he is unwilling to disturb the credibility resolutions of the hearing officer in the underlying case He notes that the dissent concludes that the Union was responsible for sending employee Hockin a campaign letter with certain words circled (i e, "You will VOTE YES"), and containing an apparent blood smear Thus, the dissent concludes that the Union engaged in objectionable con- duct by directing a threat at employee Hockin. The hearing officer, cred- iting the testimony of employee Raymond Sajdak and his wife, found that neither the Union nor the Sajdaks were responsible for the altered letter. The dissent concludes that there are only two possible explanations for the altered letter-both explanations being at odds with the Sajdak's testimony-and therefore the hearing officer's crediting of the Sajdaks must be reversed. According to the dissent, the Sajdaks, contrary to their testimony, must have been helped with the mailing by others or they must have altered the campaign letter. Finding the latter circumstances "more plausible," the dissent concludes that the Sajdaks altered the letter In so concluding, the dissent overlooks at least one additional possibility. Having switched allegiance from the Union to the Company, Hockin, along with his girl friend , could have altered the letter, to cast discredit on the Union (Chairman Dotson would not assume , as did the hearing officer, that the altered letter was sent by "an unidentified proponent of the Union ") In any event, the Chairman concludes that the record does not establish who was responsible for the altered campaign letter and, ac- cordingly, he need not pass upon whether or not employee Sajdak was an agent of the Union Thus, in the Chairman 's view, the Company, the objecting party, did not meet its burden of proving that the Union en- gaged in objectionable conduct Under all the circumstances , Chairman Dotson cannot find that the al- tered letter created a general atmosphere of fear and coercion rendering a free and fair election unlikely Thus, he joins in granting the General Counsel's Motion for Summary Judgment Since 25 May 1982 the Union has requested the Company to bargain, and since 1 June 1982 the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 1 June 1982 to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, National Brands of Ft. Lauder- NATIONAL BRANDS dale, Inc., Deerfield Beach, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Freight Drivers, Warehousemen and Helpers Local 390, an affiliate of International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America as the exclusive bargaining representative of the em- ployees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. ' 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain ,with the Union as the ex- clusive representative of the employees in the' fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All drivers and warehousemen employed by the Respondent at its 50 Lock Road, Deerfield Beach, Florida location, excluding all office clerical personnel, managerial, confidential em- ployees, guards and supervisors as defined in the Act. (b) Post at its facility in Deerfield Beach, Flori- da, copies of the attached notice marked "Appen- dix."4 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the d ate of this Order what steps the Respondent has taken to comply. MEMBER DENNIS, dissenting. I would not grant the Motion for Summary Judgment. Evidence adduced at the hearing on Re- spondent's Objection 1 establishes that 2 days before the election an employee, who opposed the Union, received at his home an anonymous letter smeared with blood, or what reasonably appeared to be blood, and bearing within the text a circled message, "You will VOTE YES." This threat of 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 937 bodily harm, and its widespread dissemination among employees the following day, significantly interfered with employees' freedom of choice at the polls and justifies setting the election aside, whether the Union or a third party was responsible for it. I attribute the letter to the Union, however, and would dismiss the complaint, revoke the certi- fication, and direct.a second election.' 1. The following is based on the hearing officer's findings in the representation case, together with additional consistent evidence drawn from the record to provide a more complete account of rele- vant events. Raymond Sajdak and two other employees initi- ated an organizing campaign among the Respond- ent's drivers and warehousemen by contacting Union Agent James Wray in October 1980.2 Ac- cording to Wray, he and Sajdak met two or three times weekly to discuss the campaign and occasion- ally spoke to one another over the telephone. Sajdak passed out union authorization cards to his fellow employees during the preelection period and returned the signed cards to Wray. According to Wray and Sajdak, on a Friday, 1 week before the 19 December election, four em- ployees, including Sajdak and Marius Alley, met with Wray at Sajdak's house. The meeting's pur- pose was to seek Wray's approval of the employees sending a prounion campaign letter to other unit employees. Alley had drafted such a letter. Sajdak testified that the meeting was held "to check with [Wray] and see if it was all right to send it to the employees." The hearing officer found, based on Wray's testimony, that an employee at the meeting asked Wray "if it would be a good idea, or would it be helpful for the organizing drive if one em- ployee sent another employee a letter or a letter to all employees," and that Wray replied that it was a "great idea." Wray also provided a sworn affidavit, which he confirmed at the hearing, stating that em- ployees "asked my' opinion if they could send a letter out to other employees." (Emphasis added.) On the following Monday, Alley came to Saj- dak's house and left the handwritten draft with Sajdak. Sajdak enlisted his wife to type and send the letter, and supplied her with a list of employee names and addresses drawn principally from a Ro- lodex file the Respondent maintained, On Tuesday, 16 December, Mrs. Sajdak went to her place of employment and typed the letter, photocopied it, ' I agree that the Board properly overruled Respondent's Objections 2, 3, and 4. 2 All dates refer to 1980 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD addressed the envelopes, franked them on the post- age machine at her office, and mailed them some- time before 1 p.m. to an undisclosed but substantial number of the approximately 44 unit employees. Mrs. Sajdak testified that she was the only person who metered the envelopes she used for the mail- ing; she was "quite sure" there were no stamped envelopes left over after she placed letters in them; and she returned home that day with the only addi- tional copies of the letter, one of which she gave to her husband.3 Sometime that day Sajdak telephoned Wray and invited him to stop by. According to Wray, when he arrived at the Sajdaks' house, Mrs. Sajdak showed him a copy of the letter, and Raymond asked his opinion of it. Wray replied, "I couldn't have did [sic] better myself." The letter he exam- ined was headed "This Bud's For You" and con- tained typical prounion election propaganda. (See Attachment A.) The hearing officer found that employee Joseph Hockin initially supported the Union and signed an authorization card, but about 3 weeks before the election changed his mind and began supporting the Respondent. He further noted that, about a week later, when Hockin told Sajdak he had re- jected the Union, Sajdak became "discouraged" and "upset." On Wednesday, 17 December, 2 days before the election, the Respondent's branch manager McQueen told Hockin that Hockin's girl friend had telephoned the plant and asked that he come home immediately because she had received a letter that upset her. When Hockin returned the call, she said she had opened a letter addressed to him that was smeared with blood. She asked him to come home. On his arrival, she showed him a letter headed "This Bud's For You." On the upper left-hand corner was a smeared red substance both he and his girl friend thought to be blood. Four words from unrelated parts of the text had been circled, forming the phrase "you will VOTE YES." The letter was otherwise identical to the letters Mrs. Sajdak mailed on 16 December, and the envelope, postmarked 16 December, bore a postage meter im- print.4 Hockin testified that he interpreted the letter as threatening "bodily harm" and that he was "scared." Hockin reported to work the next morning, de- livered the letter to the Respondent, and discussed the "blood letter" with six unit employees: Wright, Cavalieri, Golden, Allen, Alley, and Sajdak. The 8 The Union did not reimburse Mrs Saidak or her husband for postage or for their assistance 4 The hearing officer found that, due to a typographical error, the letter was addressed to "Joseph Tockin." Union won the election, held the following day, by a vote of 21 for and 17 against . Wright confirmed that Hockin had informed him that he had received a threatening letter. H. The hearing officer attributed Hockin's letter to "an unidentified proponent of the Union." Because he was "favorably impressed" with the Sajdaks' de- meanor while testifying, he credited their denials that they were responsible for the threatening letter Hockin received. I would not ordinarily disturb findings of fact based on demeanor. Here, howev- er, the hearing officer's findings are illogical and inconsistent with overwhelming record evidence to the contrary. The Board's policy of attaching "great weight" to credibility findings is not abso- lute. If all relevant evidence contravenes the credi- bility resolutions, the findings may be overturned.5 The hearing officer failed to appreciate the sig- nificance of the sequence of events the Sajdaks re- counted. Raymond Sajdak testified that he gave the handwritten campaign letter to his wife after re- ceiving it from Alley on Monday, 15 December. At her office the next morning, Mrs. Sajdak typed the letter, photocopied it, addressed and metered the envelopes, and mailed them to employees by 1 p.m.6 The following day Hockin received an al- tered copy of the letter, postmarked 16 December, in a metered rather than a stamped envelope. If the Sajdaks truthfully testified about the chro- nology involved in the typing, metering, and mail- ing of Attachment A, then they lied about altering the letter sent to Hockin, because no one else had the opportunity to intervene in the chain of events according to their account. On the other hand, if the Sajdaks credibly denied involvement in mailing the threatening letter to I-Iockin, they gave false testimony about their roles in the preparation and distribution of Attachment A. Of the two, the former is the more plausible alternative, particular- ly because Raymond Sajdak had the motive as well as the opportunity to threaten Hockin, the hearing officer having noted that Sajdak became "dis- turbed" and "upset" when Hockin informed him 2 weeks before the election that he had switched sides. I conclude, therefore, that the ' Sajdaks were 5 Stretch-Tex Co, 118 NLRB 1359, 1361 (1957), El Rancho Market, 235 NLRB 468, 470 (1978), enfd 603 F 2d 223 (9th Cir 1979) ("[T]he ulti- mate choice between conflicting testimony rests not only or. the demean- or of the witnesses, but also on the weight of the evidence, established or admitted facts, inherent probabilities, and reasonable inferences drawn from the record as a whole ") B As noted, Mrs Sajdak testified no metered envelopes were left over after the mailing NATIONAL, BRANDS responsible for sending the threatening letter to Hockin.7 The hearing officer also found that the evidence was insufficient to establish an agency relationship between Raymond Sajdak and the Union, assuming arguendo the Sajdaks' responsibility for the offend- ing letter. He stated that the Union neither ratified nor condoned the Sajdaks' conduct; Sajdak was "not recruited" to send letters and was not paid for his services in that connection or more generally in the Union's organizational campaign; he did not "hold himself out" as a union agent; and the Union took no part in preparing or distributing the letter. As a result, the hearing officer found that Sajdak was merely furthering "the interests of himself and other employees" in causing the letters to be sent. On 18 May 1982 the Board adopted most of the hearing officer's findings and recommendations, and certified the Union." The Board specifically agreed (fn. 2, par. 2) that no agency relationship existed between the Sajdaks and the Union, and that this conduct fell short of creating "a general atmosphere of fear and reprisal rendering a free ex- pression of choice of representative impossible." I disagree. I think there is an agency relationship between the Sajdaks and the Union. Further, in view of the closeness of the election, the threaten- ing nature of the letter, and extensive dissemination of the threat on the day before the polls opened, I would find that employee freedom of choice was vitiated whether or not the Union is held responsi- ble for the letter. Section 2(13) of the Act reads: In determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts per- formed were actually authorized or subsequent- ly ratified shall not be controlling. [Emphasis added.] This provision precludes the Board from formulat- ing a test of agency which takes into account only a principal's express authorization of particular conduct . In Hampton Merchants Assn., 151 NLRB 1307, 1308 (1965), the Board, in affirming this prin- ciple, explained: 1 In agreement with the hearing officer , I find that Mrs Sajdak's role was one of "a dedicated spouse acting in acdordance with the request of her husband." 8 The Board specifically disavowed three findings . ( 1) that an employ- ee whom Hockin told about the letter did not feel threatened or coerced by it, (2) that the letter was not coercive because Hockin continued to support the Respondent after receiving it, and (3) that any fear of bodily harin caused by the letter's condition was "more imaginative than real" because the election was by secret ballot 939 The Act holds a labor organization responsible for the unlawful conduct of its agent just as it holds an employer answerable for what the latter's agent does. It is a familiar rule of agency that a principal is responsible for the acts of its agent done in furtherance of the principal's interest and within the scope of the agent's general authority, even though the principal may not have authorized the specific act in question. Similarly, in Longshoremen IL WU Local 6 (Sunset Line), 79 NLRB 1487, 1509 (1948), the Board stated: A principal may be responsible for the act of his agent within the scope of the agent's gener- al authority, or the "scope of his employment" if the agent is a servant, even though the prin- cipal has not specifically authorized or indeed may have specifically forbidden the act in question. It is enough if the principal actually empowered the agent to represent him in the general area within which the agent acted. [Footnote omitted.] Finally, in determining whether an agency relation- ship should be imputed, the Board is mandated to apply the ordinary law of agency. Sunset, 79 NLRB at 1507. That law, as expressed in Restate- ment 2d, Agency, par. 216, comment (a), mirrors Hampton and Sunset in holding a principal liable for the "tortious" conduct of his agent, regardless of whether the act was authorized, if the act oc- curred "in the course of an undertaking for the benefit" of the principal. In the Sunset case, the Board held a union liable not only for acts of its business agent committed at or near the picket line, but also for the misconduct of pickets and others who unlawfully pursued non- striking employees away from the picket line to further the union's strike objectives. The Board found: [The union] was responsible for the wrongful acts of the [business agent] and individuals under his direction which were performed in furtherance of those same purposes and were of the same general character as, or incidental to, the peaceful picketing, and substantially within this labor dispute in space and time. [79 NLRB at 1510.] IV. The meeting at Sajdak's house on the Friday before the election was one of a series of consulta- tions between Wray and Sajdak, all directed 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD toward their common goal of winning the election. The hearing officer characterized Wray as, "the agent primarily responsible for the Petitioner's or- ganizing campaign," and the evidence is undisputed that the employees sought Wray 's consent to send a preelection campaign letter.. As Wray testified, they asked him, whether they could send a letter and whether it` would be "helpful for the organiz- ing drive." Although Wray did not inquire further into either the letter's form or content, there is no question that he specifically authorized the under- taking, telling them it was a "great idea." Wray and the Union, therefore, became responsi- ble not only for the innocuous letters mailed to other employees, but also for the misconduct asso- ciated with sending the threatening letter to Hockin. This result follows because Sajdak , in con- cert with his wife, acted within the scope of his general authority from Wray to prepare a letter to employees, even though Wray did not specifically authorize the offending act. Accordingly, I must ascribe responsibility for the threatening letter to the Union through Sajdak, its agent. Hockin received the letter 2 days before the election and disseminated its content the following day to a substantial number of unit employees. The message was graphic and unmistakable : unless Hockin supported the Union, physical reprisal would follow. Although Sajdak directed the threat specifically to Hockin, apparently because he switched sides during the campaign and began sup- porting the Respondent, the letter's import could hardly have been lost on other employees who, only a day after learning of it, cast their ballots in the election. Hockin passed the threat on to five employees besides Sajdak. The election was decid- ed by only four votes, and six employees (not counting Sajdak) were aware of the threat. I would find, therefore, that the Union's conduct tainted the election, and that the results should be set aside. In NLRB v. Mr. Porto, 590 F.2d 637 (6th Cir. 1978), the court refused to enforce a bargaining order because, approximately 2 months before the election, several prounion employees, in the pres- ence of union representatives, threatened at least one employee with violence unless he supported the union, and a union representative put nails in the company's driveway. Noting the small size of the unit and the closeness of the election (six for, and three against the Union), the court found that the union's intimidating conduct had not subsided in the 2-month interval preceding the election, and that the conduct therefore could not be considered "isolated" or "remote." Consequently, the court held that the company had met its burden of show- ing the election was unfair. Here, given the Union's culpability for the letter sent to Hockin, the close- ness of the vote, and the relatively small size of the unit, I find little in this case to distinguish it from Mr. Porto, except that the conduct occurred imme- diately before the election and there was no time for the effects of the threat to dissipate. Although I regard my colleagues' willingness to honor the election results especially inappropriate in view of the Union's authorizing the letter,9 I do not believe the election should stand whether or not the Union is held liable for the election miscon- duct. Less weight is accorded to third-party con- duct in assessing its impact on elections , but elec- tions conducted in an atmosphere of fear and coer- cion must be set aside . Sonoco of Puerto Rico, 210 NLRB 493 (1974); Steak House Meat Co., 206 NLRB 28 (1973); Zeiglers Refuse Collectors v. NLRB, 639 F.2d 1000 (3d Cir. 1981). 9 Chairman Dotson asserts the Respondent did not meet its "burden of proving that the Union engaged in objectionable conduct," and contends I have overlooked the possibility that Hockin and his girl friend "could have altered the letter to cast discredit on the Union." As in any civil case, the objecting party in a representation hearing bears the burden of proving its allegations by a preponderance of the evi- dence. See NLRB v. Mattison Machine Works , 365 U.S. 123 (1961); Fire- stone Steel Products, 235 NLRB 548, 549 (1978) The scenario suggested by the Chairman , however, would require the Respondent to meet a burden heavier than the beyond-a-reasonable-doubt standard used in criminal cases. It would require the Respondent to prove a negative. that there is no possible way the letter could have been altered by anyone other than the Sajdaks. The Chairman's suggestion concerning Hockin and his girl friend is based upon sheer speculation , for the record contains not a scintilla of supporting evidence The extreme unlikelihood that Hockin and/or his girl friend deliberately altered the campaign letter is evident from a close analysis of the established facts. Mrs. Sajdak admitted mailing the letters to employees on Tuesday, 16 December, so that "they would be picked up at . . . 1:00 o'clock " The envelope in which Hockin said he received the altered letter was, like the other copies mailed to employees, post- marked 16 December and, like them , bore a postage meter imprint, con- sistent with Mrs. Sajdak's testimony that she franked the letters at her office. Because the letters were mailed in the early afternoon of 16 De- cember, it is inconceivable the letter arrived at Hockin's residence earlier than the next day, Wednesday , 17 December, as he testified There is thus no reason to doubt Hockin truthfully stated he was at work Wednes- day when his girl friend called him at the facility after finding the letter in the day's mail . Nor would she have had reason to call him unless the letter had already been altered . Indeed, the hearing officer recited and obviously credited Hockin's narrative concerning his receipt of the letter and his subsequent discussions about it with his fellow employees the next day, Thursday, 18 December. To suggest Hockin lied is therefore to take issue with the hearing officer's credibility resolutions , contrary to the Chairman's stated refusal to do so. There is an additional problem involving Hockin's alleged motive to discredit the Union by altering the letter and lying to his coworkers. The Board traditionally holds that threats of bodily harm by a party to an election reasonably tend to coerce employees to vote in favor of the party making the threats. Home & Industrial Disposal Service, 266 NLRB 100, 101 (1983) Neither record evidence nor common sense explains why Hockin would assume , instead, that an apparently threatening letter would discredit the Union and cause employees to vote against it In short, I find it entirely unrealistic and contrary to the overwhelming weight of record evidence to suggest Hockin or his girl friend falsified the letter as part of a scheme to discredit the Union The Respondent has established, by a clear preponderance of evidence , that the Sajdaks sent the letter NATIONAL BRANDS APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Freight Drivers, Warehousemen and Helpers Local 390, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive representative of the employ- ees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached On terms and conditions of employment for our employees in the bargaining; unit: All drivers and warehousemen employed by us at our 50 Lock Road, Deerfield Beach, Florida location, excluding all office clerical personnel, managerial, confidential employees, guards and supervisors as defined in the Act. Attachment A 941 THIS BUD'S FOR YOU SOMETHING IMPORTANT is happening at National Brands of Deerfield, a chance to have a -voice in what happens to you in regards to your work. It is one thing to do a man's work, but to be treated like you were back in the classroom at the Wednesday "voluntary meetings" [BE ON TIME!] is another. HAVE YOU CONSIDERED the unusual things that have happened the last several weeks-"riders" checking our efforts, new handcrafts when a wait of a month for one that works was normal, and trainees in such large numbers to leave no doubt about what will happen if we fail. PROMISES-there is no safety in a person changing is mind about our desire for a union. Anyone who has changed his mind has sealed his faith. Common sense will tell you that "cleaning house" occurs after a union election is lost. THERE IS NO SUCH THING as easy money, any- thing we gain will be earned-clearing the way for im- provements in the future. "Hang-tight" is an easy thing to say, but NECESSARY to gain what we deserve. MANY THINGS ARE SAID in regards to unions, but the clear fact is that they help. National Brands is ex- tending such obvious effort to fight us that you realize a UNION WOULD really BENEFIT US. WE ARE THE fourth GROUP to try TO UNIONIZE NATIONAL BRANDS. Someday it will happened- MAKE IT FRIDAY, DECEMBER 19, 1940. VOTE YES. NATIONAL BRANDS OF FT. LAUDER- DALE, INC.