Crown Coach Corp.

1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Crown Coach Corporation and Local Union 1710, International Brotherhood of Electrical Work- ers, AFL-CIO, CLC. Case 21-CA-17567 16 July 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 2 August 1979 the National Labor Relations Board issued a Decision and Order 1 in this case in which it found that the Union was properly certi- fied on 14 November 1978, following a Board-con- ducted election, and that the Respondent thereafter violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to bargain collec- tively and by refusing to provide the Union, on re- quest, with relevant information necessary for the purpose of collective bargaining. The Board or- dered the Respondent to take specific affirmative action to remedy such unfair labor practices. The Respondent subsequently refused to comply with the Board's Order on the ground that the Union's certification was invalid. Thereafter, the Respondent filed a petition for review of the Board's Order, and the Board ap- plied for enforcement thereof with the United States Court of ApPeals for the Ninth Circuit. On 30 July 1980 the co/Urt issued its decision2 granting the petition for reiew and remanding the case to the Board for the purpose of conducting a hearing on issues raised by the Respondent's objections concerning the Union's alleged responsibility for certain preelection misconduct. The Board then ac- cepted the court's remand and, in accordance therewith, a hearing was held before Administra- tive Law Judge Roger B. Holmes. On 14 July 1981 Administrative Law Judge Roger B. Holmes issued the attached decision in this proceeding. The Union filed exceptions and a supporting brief and the Respondent filed an an- swering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the judge's decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, find- ings, and conclusions and to adopt the recommend- ed Order. We adopt the judge's finding, for the reasons stated by him, that third party conduct linked to 243 NLRB 984. 2 626 F 2d 865. employee union activities interfered with the elec- tion held in the underlying representation case. We emphasize in this regard that the record evidence shows the election was conducted in a unit of ap- proximately 765 eligible voters, 65 to 70 percent of whom were of Spanish descent. As set forth by the judge, during the election campaign, prounion em- ployees repeatedly and specifically threatened other eligible voters with deportation if they did not support the Union or if the Union lost the elec- tion. It is clear that the deportation threats had a coercive impact on the unit employees. Thus, as a result of the deportation threats which were widely disseminated among the unit employees, 20 to 30 eligible voters asked the Respondent's manufactur- ing office manager, John Stratford, whether the Union would take such action if it lost the election. Further, there is also evidence, as set forth by the judge, that union adherents made additional state- ments that employees would incur physical harm and loss of jobs if they did not support the Union. In determining the seriousness of threats, the Board evaluates the nature of the threats and the surrounding circumstances such as whether they encompass the entire bargaining unit, whether they were widely disseminated, whether the persons making the threats are capable of carrying them out, whether it is likely that employees acted in fear of the carrying out of the threats, and whether the threats were rejuvenated at or near the time of the election. Westwood Horizons Hotel, 270 NLRB 802 (1984). Clearly, the threats made here were of a serious nature. They conveyed the explicit warn- ing that employees not only risked job loss, but also the loss of their homes and possibly even sepa- ration from their families by failing to support the Union. 3 It is also evident that those threats involv- ing deportation affected a significant portion of the bargaining unit. Further, the various threats were made directly to at least 11 employees and, as noted, there is evidence that the message was widely disseminated to other eligible voters that they could face deportation if the Union lost the election. 4 Although the Respondent's manufactur- ing office manager made assurances that this would not happen, the employees themselves certainly were aware that Stratford had no ability to control the actions of the Union's representatives and that any individual can report a violation of the immi- gration laws. The evidence further shows that only 3 At the time the conduct in issue took place, it is clear that illegal aliens enjoyed the protections of the National Labor Relations Act Sure- Tan, Inc v. NLRB, 467 U S. 883 (1984), and cases cited therein. 4 Since the record shows actual dissemination of these threats, we find it unnecessary to rely on the Judge's finding that dissemination of state- ments made during an organizing campaign can be inferred 284 NLRB No. 111 CROWN COACH CORP. 1011 a few days before the election union supporter Osuna told a group of employees that the Immigra- tion Service would come unless "we got into the Union." Thus, the threats that occurred repeatedly throughout the campaign were rejuvenated near the time of the election. Applying the test set out in Westwood Horizons Hotel to the facts of this case, we conclude that the threats concerning immigra- tion were sufficiently serious to create a general at- mosphere of fear and confusion that interfered with the election.6 We additionally note that the validity of the election under scrutiny here also must be evaluated in the context of the overt acts of vandalism that occurred during the organizing campaign. These incidents include the slashing of car tires, plugging of toilets, and the damaging of buses manufactured by the Respondent. On the election date, a motor- cycle owned by an employee was damaged while parked 20 to 25 feet from the polling place. Ac- cording to Stratford, there had been relatively few incidents of this nature since an employee strike in the early 1970s. While there is no evidence as to who was responsible for such property damage, we find that these incidents further contributed to the atmosphere of fear and coercion in which the elec- tion was held. For these reasons, we conclude that the totality of the preelection misconduct found by the judge warrants setting aside the election results in the un- derlying representation case. Accordingly, we deny the General Counsel's Motion for Summary Judg- ment. ORDER It is ordered that the proceeding in Case 21-RC- 15484 is reopened and consolidated with the pro- ceeding in Case 21-CA-17567. IT IS FURTHER ORDERED that the General Coun- sel's Motion for Summary Judgment is denied, and the complaint in Case 21-CA-17567 is dismissed. IT IS FURTHER ORDERED that the Certification of Representative in Case 21-RC-15484 is vacated. IT IS FURTHER ORDERED that the proceeding in Case 21-RC-15484 is remanded to the Regional Director for Region 21 for the purpose of holding a second election.6 [Direction of Second Election omitted from pub- lication.] 5 Since we find that the direct threats made here constituted objection- able conduct, we find it unnecessary to rely on evidence that there were "rumors" in the plant that the Union would call the Immigration Service if it lost the election, 6 Should the Union not wish to proceed to an election, it may with- draw its petition without prejudice to filing a new petition. David M. Pill, for the General Counsel. Dennis F. Moss (Davis, Frommer & Jesinger), of Los An- geles, California, for the Charging Party. Richard L Lotts (Sheppard, Mullin, Richter & Hampton), of Los Angeles, California, for the Respondent. DECISION ROGER B. HOLMES, Administrative Law Judge. Based on an unfair labor practices charge filed on February 26, 1979, by Local Union 1710, International Brotherhood of Electrical Workers, AFL-CIO, CLC, the General Coun- sel issued on March 6, 1979, a complaint alleging viola- tions of Section 8(a)(1) and (5) of the Act by Crown Coach Corporation. Thereafter, the General Counsel filed a Motion for Summary Judgment with the National Labor Relations Board in Washington, D.C. The Board granted the General Counsel's motion in its Decision and Order, which issued on August 2, 1979, and which is re- ported at 243 NLRB 984 (1979). The Respondent filed a petition to set aside the Board's Order with the United States Court of Appeals for the Ninth Circuit. The Board then filed a cross-peti- tion for enforcement of its Order. The court issued a memorandum in Case 79-7423 on July 30, 1980, 626 F.2d 865, in which the court granted the Respondent's peti- tion, denied the Board's cross-petition, and remanded the case for a hearing in accordance with the court's memo- randum. Pursuant to the court's order, the Board on January 14, 1981, issued an order reopening record and remand- ing proceeding to Regional Director for further hearing. It was indicated that the hearing would be "on the issue of the Union's alleged responsibility for certain preelec- tion conduct, and so that a hearing officer could, after such hearing, determine whether the total impact of the preelection threats and property damage require a new election." The hearing was held on April 21, 1981, at Los Ange- les, California. The due date for the filing of posthearing briefs was extended to May 29, 1981. FINDINGS OF FACT I. THE WITNESSES AND DOCUMENTARY EVIDENCE Four persons were called as witnesses at the hearing. In alphabetical order by their last names, they were: Robert Dixon, who has been an International representa- tive of the Union since 1969; Richard Hendricks, who has worked for the Union for the past 8 years; John Stratford, who is the manufacturing office manager of the Respondent; and Lawrence Tafoya, who is an Inter- national representative of the Union. The findings of fact to be set forth herein in sections II and III will be based on portions of the testimony given by each one of the four witnesses. All of them gave credible testimony at the hearing. In addition, I have also considered the extensive amount of documentary evidence which was introduced by the parties at the hearing. The formal documents per- taining to the unfair labor practice proceeding are con- tained in General Counsel's Exhibit 1, General Counsel's Exhibits 3(b), (c), and (d), and Respondent's Exhibit 1. 1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The documents pertaining to the representation case are contained in General Counsel's Exhibit 2, General Coun- sel's Exhibit 3(a), and Respondent's Exhibit 2. (Some other exhibits will be mentioned later.) Included in Gen- eral Counsel's Exhibit 2 is the entire transcript of the original hearing on the employer's objections to the elec- tion. That transcript is designated as General Counsel's Exhibit 2(f). The hearing officer's report and recommen- dations are set forth in General Counsel's Exhibit 2(g). The Regional Director's Second Supplemental Decision and Certification of Representative is set forth in General Counsel's Exhibit 2(j). The Board's telegraphic Order de- nying the employer's request for review of the Regional Director's action is set forth in General Counsel's Exhib- it 2(1). It seems unnecessary to restate all the matters that have taken place in the representation case and the unfair labor practice case up to this point in time. To do so would be unduly repetitious. Those matters have been considered, and they are available in the record for study by those persons having a need to do so. Instead, in making the findings of fact to be set forth in sections II and III herein, the main focus will be on the new matters developed in the hearing before me. Nevertheless, in making such findings, and certainly in arriving at the conclusions to be set forth in section IV herein, consider- ation has to be given to the entire record in this proceed- ing. However, an attempt will be made to avoid needless repetition. II. THE EVENTS PRIOR TO THE ELECTION ON JUNE 23, 1978 Jerry Kimball was the one who first contacted the union about organizing the employees of the Respond- ent. Kimball worked at that time as an electrical assem- bler for the Respondent. He had access to various parts of the Respondent's facility due to the nature of his job in the assembly process. Kimball's first contact was with Union Representative Hendricks, who advised Kimball to contact International Representative Tafoya. Hendricks gave Kimball the tele- phone number for Tafoya's office. About a month or so later, Hendricks saw Kimball at a meeting of a gun club. Kimball informed Hendricks that he had telephoned Tafoya and that Tafoya was going to set up a meeting. Later on, during personal con- versations involving other matters, Hendricks inquired of Kimball how things were going at Crown Coach. Kim- ball replied that he hoped that they could become orga- nized, and he expressed the view that "they were in need of some held down there." Hendricks recalled that Kim- ball mentioned the dissatisfaction of employees with the working conditions at the plant. As a result of the telephone conversations between Kimball and Tafoya, a meeting was arranged to be held at the Arena Bowl in South Gate, California. About seven or eight employees of the Respondent attended the first meeting. Kimball was the only one whom Tafoya could recall by name at the hearing. Tafoya paid for the soft drinks and refreshments served at the meeting. Tafoya said that the problems of the employees were dis- cussed at that meeting and that he asked the employees to sign union authorization cards. Tafoya told the em- ployees, "We will work with you, but you fellows have to help yourselves." He explained to them that the Union Would follow the Board's Rules and would get an elec- tion for the employees, but that the Union needed to have 30 percent of the employees sign union authoriza- tion cards. After the initial meeting at the bowling alley, four or five other meetings were held for Respondent's employ- ees at the union hall. Tafoya estimated that the number of employees who attended those meetings varied from 30 to 55. Topics discussed at those meetings included the rights of employees under the law, NLRB Rules, the problems of employees at the plant, a history of the IBEW, and the Union's dues structure and initiation fees. Most of the questions raised by employees at the meet- ings were asked in Spanish. Tafoya gave the answers to the questions in both Spanish and English. At more than half of those meetings, attendance rosters or sign-in sheets were taken of the names of the employees who at- tended. While those lists of names existed at the time of the original hearing on the Employer's objections, the lists had been destroyed prior to the hearing held on April 21, 1981. Part of the explanation given at the hear- ing was that Tafoya had a practice of keeping on his desk a stack of documents from various organizing cam- paigns. As time went by, Tafoya's practice was to remove the bottom documents and destroy them when he added new documents to the top of the stank. Calen- dar notations were routinely discarded at the end of each month. The other part of the explanation was that the union's office was burglarized on St. Patrick's Day in 1981, and the burglars threw the Union's papers all over the parking lot. Hendricks recalled that between two and four employ- ees spoke with him after the union meetings on the sub- ject of immigration. He testified, "The first I heard of it was, the employees had made remarks to me that there had been threats by the company that Immigration might be called in." Hendricks did not recall the names of the employees who had made those comments to him He did not recall the subject being mentioned at a union meeting by himself, Tafoya, or any other speaker repre- senting the Union. In contrast to what certain employees had told Hen- dricks after the union meetings, other employees told Re- spondent's manufacturing office manager, Stratford, a different story. Stratford testified, "they were told that if the union was to come in the plant, if they were to oppose it, that they would \have Immigration come in, and they would be deported." Stratford said that he stated to those employees, "I told them that that was not necessarily so, and that they had no power with Immi- gration, any more than anyone else would have." As a result of the foregoing, Stratford prepared a bulletin, which was posted on all the Company's bulletin boards. It is dated May 23, 1978, and the bulletin is in both Eng- lish and Spanish. A copy of that bulletin is contained in General Counsel's Exhibit 3(a), and it was previously in- troduced into evidence at the original hearing on objec- tions as Union's Exhibit 2. In part, it reads: CROWN COACH CORP. 1013 If you need held solving your Immigration prob- lems, you may contact Jack Stratford or Kirk Was- sell in the Personnel Office, telephone Ext. 209. If you feel more comfortable, you may see Roberto Vasquez Department (7), or Danny Arana Depart- ment (6). At the meeting at the union hall, Tafoya asked the em- ployees to write down matters that they felt should be covered in the Union's organizing campaign. At least one of the documents, which the Union distributed to employees, was written by one of the employees who supported the Union. Among the documents that are contained in General Counsel's Exhibit 3(a) introduced at this hearing was a leaflet which had been received as Union's Exhibit 3 in the original hearing on objections. With regard to that union leaflet, Tafoya said, "This was probably written by one of the employees, and all I did was translate it." The leaflet is on the Union's letterhead, and at the bottom appears, "Remember—We Are The Union!" A few spaces underneath that appears, "Your In-Plant Working Committee For I.B.E.W." In part, the leaflet states: Fellow workers, we know that the company is offering free immigration services for all the undoc- umented workers at Crown Coach, this is incredi- ble! We all know that in the Los Angeles area there are numerous places paid for by the United States Government where they offer this type of service. There is no need for the company to do so. Fellow workers, if you are fixing your green card in this country, the only thing that we need from the Company is our employment record, with or without a union! Below the foregoing, the leaflet asserts four reasons why the Employer did not want a union. The leaflet fur- ther asserts that the Company had lawyers to speak for the Company and that the employees needed qualified union representatives to speak for the employees regard- ing wages, hours, and working conditions. Neither Union Representative Hendricks nor Union Respresentative Dixon could recall anyone other than Jerry Kimball as being on the Union's in-plant organizing committee. Kimball wore a small button on his lapel with an insignia and the letters "IBEW" on it. The size of that button was described as being smaller than a quarter coin. Kimball was the only one whom Stratford observed that was wearing such a button during the Union's organizing campaign. With regard to expenses incurred by the Union during the organizing campaign, Hendricks identified a check and a voucher in the amount of $30.40 made payable to him for refreshments at a union meeting on March 30, 1978. Employees present at that meeting were: Jerry Kimball; G. Diaz; M. Crawford; J. Bellenberger; Raul Oseto, W. Dixon; J. Corrosca; and B. Barrie. Hendricks also identified another check and voucher in the amount of $13 and made payable to him for refreshments at a meeting of Respondent's employees at the union hall on April 16, 1978. Another check and voucher in the amount of $34 and made payable to Hendricks was iden- tilled by hint That was for reimbursement of expenses for refreshments served at a meeting of the Respondent's employees at the union hall The date of the meeting was not given, but the date of the check was June 27, 1978. Introduced into evidence as Respondent's Exhibit 3 was a copy of another check and voucher in the amount of $26.80, which was attributable to "Lunch (8) Crown Coach Organizing Comm" Kimball's name was among those who attended. The Union maintains records of payments made to em- ployees of companies. The companies may be ones with whom the Union has a collective-bargairung agreement, or they may be ones where the Union is organizing The Union's payments are for the time lost from work by em- ployees. For the year 1978, there is a record of three payments made by the Union to employees of the Re- spondent. The payments are for 4-1/2 hours time that the employees lost during the election held on June 23, 1978. The hourly rate of pay of each employee was multiplied by 4-1/2 in order to arrive at the amount of money. The payments were: Jerry Kimball, $23.40; Bill Barrie, $25.65, and Roberto L. Schlemmer, $26.50. Those three persons were identified as being the Union's election ob- servers. The parties stipulated that, if he were called to testify at this hearing, the custodian of the Union's records would testify that the payroll records of the Union re- flect the payroll payments to employees of the Union for any payroll period in which those employees earn $50 or more. It was further stipulated that those records do not reflect any such payments to employees of the Respond- ent during the year 1978. Hendricks said that he did not direct any employees of the Respondent to tell other employees anything in par- ticular, nor did he authorize them to make any specific comments about Immigration. Hendricks said that he had heard nothing about employees' saying that the Union was going to call Immigration. Instead, as indicated pre- viously, Hendricks said that he had heard that it was the Respondent who was going to call Immigration. Hen- dricks also stated that he did not authorize any employ- ees to represent themselves as being agents of the Union, nor did he authorize or instruct any employees to commit acts of vandalism. He acknowledged that he had heard remarks made about a damaged motorcycle on the day of the election, but he did not know who had done the damage. Tafoya similarly testified that he did not direct any employees to engage in acts of vandalism at the Re- spondent's facility, nor did he direct employees to make threats to other employees regarding Immigration. In- stead, Tafoya stated that he told the employees, "In order to get people to sign cards and vote for us, you have to make friends with them, so talk to all your friends." Tafoya further said that he did not authorize any employees of the Respondent to represent them- selves as employees of the Union or to speak on behalf of the Union. He said that lie did not hire anyone to work as an inside organizer at the Respondent's facility. During the election campaign, some large photographs were placed on a wall at the Respondent's plant. Those 1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD photographs depicted some of the events that had oc- curred about 7 years earlier during a Teamsters strike at the plant. There were pictures of buses that had been vandalized; there were pictures of mass picketing, and there were pictures of policemen. III. THE EVENTS SUBSEQUENT TO THE ELECTION OF JUNE 23, 1978 During the summer of 1978, the employees of the Re- spondent worked on three shifts. They produced 25 school buses a week. In addition, the employees also pro- duced about 10 firetrucks during the year 1978. At the time of the election, the Respondent's total payroll had grown to about 800 employees. By the time of the trial on April 21, 1981, there were about 250 employees working for the Respondent. They wre producing three school buses a week. In 1980 the employees had also produced 24 to 26 firetrucks and also 18 to 25 special purpose vehicles. Also in 1980, the Com- pany was acquired by a new owner. Introduced into evidence as Respondent's Exhibit 4 was a copy of a list of eligible voters that the Respond- ent had forwarded to Region 21 of the Board prior to the election. The list had markings added prior to the hearing to indicate which employees were still currently employed by the Respondent. Introduced into evidence as Respondent's Exhibit 5 was an alphabetical list of the names of the Respondent's employees as of April 3, 1981. Respondent's Exhibit 6 shows the total number of em- ployees hired and the total number of employees termi- nated by the Respondent. That document also shows the turnover rate of employees by calendar quarter from July 1, 1978, through March 31, 1981. With regard to union activities since the election, Tafoya said that no union meetings of Respondent's em- ployees had been held at the union hall in 1979, 1980, or in 1981 up to the time of the hearing. He also said that there had been no distribution of union literature at the Respondent's plant since a month and a half after the election was conducted. IV. CONCLUSIONS In its decision in Westside Hospital, 218 NLRB 96 (1975), the Board held: The Administrative Law Judge found, in essence, and we agree, that the test to be used to determine whether Respondent's conduct destroyed the labo- ratory atmosphere necessary to the exercise of free choice in the election is, basically, whether that conduct was coercive and also had a tendency to affect or interfere with the employees' actions at the polls. The Board has also pointed out in another decision that "the Board's standard for permissible employee comment during an election campaign has never been limited to rational debate. We are dealing with human beings who vary greatly in their mode of expression." American Wholesalers, 218 NLRB 292 fn. 6 (1975). With the foregoing guidance from the Board in mind, I turn now to the issue of whether the union is responsi- ble for the threats and the property damage which took place prior to the election on June 23, 1978. In analyzing the evidence presented in this case, it is helpful to look to the Board's decision in Teamsters Local 886 (Lee Way Motor Freight), 229 NLRB 832 (1977), in which the Board stated (at 832 and 833): We note, however, that Section 2(13) of the Act provides that: 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 performed were actu- ally authorized or subsequently ratified shall not be controlling. Rather, responsibility attaches if, applying the "or- dinary law of agency," it is made to appear the union agent was acting in his capacity as such. Local 760, International Brotherhood of Electrical Workers, A.F. of L. (Roane-Anderson Company), 82 NLRB 696, 712 (1949). And, as the Board has indi- cated in International Longshoremen's and Ware- housemen's Union, CLO., Local 6, et al. (Sunset Line and Twine Company): A principal may be responsible for the act of his agent within the scope of the agent's general au- thority, or the "scope of his employment" if the agent is a servant, even though the principal has not 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.' As the Second Circuit in N.L.R.B. v. Local Union No. 3, International Brotherhood of Electrical Work- ers, AFL-CIO [New York Telephone Company],2 noted, "[c]ommon law rules of agency govern; au- thority may be implied or apparent, as well as ex- press." 1 79 NLRB 1487, 1509 (1948). 2 467 F 2d 1158 (1972) It is now clear from the evidence presented at the hearing before me that Jerry Kimball played an impor- tant and significant role in the union organizational ac- tivities among the Respondent's employees. Kimball was the one who initiated the campaign when he made the first contact with a union representative. Then Kimball followed through with additional contacts with an Inter- national representative to arrange for the first meeting of the Respondent's employees to explore union organiza- tional activities. Kimball continued with his participation in union activities by taking part in the Union's in-plant organizing committee. It is noteworthy that Kimball's name was the only one recalled by Hendricks and Dixon as being on the Union's committee at the plant. In addi- tion, Kimball was the only one whom Stratford recalled as having worn an IBEW button with the Union's insig- nia and union's name. It will be recalled from section II that Kimball was one of three persons chosen by the CROWN COACH CORP, " 1015 Union to act as the Union's election observers. Thus, the evidence now shows that Kimball was responsible for initiating the union organizational campaign, and Kimball played a prominent and active part in that campaign. To avoid any misunderstanding, the foregoing conclu- sions do not imply that Kimball did not have a right to participate fully in union organizational activities. As an employee, the Act certainly guaranteed that right to him and to other employees. Thus, the question is not wheth- er Kimball had a right to take a prominent part in the Union's organizing campaign, but rather whether the Union was responsible for his acts and the acts of others. In Sanoco of Puerto Rico, 210 NLRB 493 (1973), the Board briefly noted the prominent union activity of two employees who were involved in two of the four threats that led the Board to set aside the election in that case. None of the conduct was found to be attributable to the Union In incident 1, the Board noted that Victor Rivera "was characterized as the `spearhead' of union activity." In incident 2, the Board noted that Jose A. Prado "was also found to be one of the three most active union ad- herents." Thus, the prominence in union activities of the persons involved in such incidents is a factor not to be ignored in considering all the circumstances. In Brown Steel Co., 230 NLRB 990 (1977), the Board set aside a representation election where employees had been told by the union's "chief employee organizer" and another employee that the names of those who had signed union authorization cards would be revealed to the employer, if the union in that case lost the election. The Board said (at 991), "we conclude that the situation present at the time of the election was one of sufficient confusion and fear that a fair election would be impossi- ble." Neither the "chief employee organizer" nor the second employee were found to be agents of the union, and thus, the union was not found to be responsible for the threat. Instead, it was the nature of the threat to a number of employees that appears to have led to the Board's conclusion. After considering particularly the Board's decision in the Lee Way Motor Freight case, supra, and the evidence adduced at the original hearing on objections and the hearing before me, I conclude that the evidence does not establish that Kimball acted as an agent of the Union in making the preelection threat that is attributed to him. As indicated above, Kimball was a prominent and active participant in the Union's organizational campaign, but I conclude that his important role in these circumstances does not make him an agent under the ordinary law of agency. Nevertheless, as indicated in the Board's deci- sions in Sonoco of Puerto Rico and Brown Steel, supra, the prominence of an employee's activity in the union's orga- nizing campaign is a factor that the Board has noted. That observation seems particularly appropriate here be- cause, as will be described later in this section, the threats made by certain other employees bear a remarka- ble similarity to the threat made by Kimball. With regard to those other employees who made threats, the evidence does not show that they were agents of the Union. With regard to the acts of vandalism on the Employer's prem- ises, those acts of property damage were committed by persons unknown, and the evidence does not show that the Union encouraged, participated in or condoned such acts. Therefore, I conclude that the Union was not re- sponsible for the threats or the acts of vandalism that took place prior to the election. However, that conclu- sion does not end the inquiry because, as the Board has held in Steak House Meat Co., 206 NLRB 28, 29 (1973): None of the threats involved herein was attribut- able to the Union. It has long been established that, while conduct not attributable to either party to an election may be grounds for setting aside the elec- tion, less weight is accorded to such conduct of the parties. 2 In such circumstances, however, the Board has set aside elections where the conduct created a general atmosphere among the voting employee of confusion and fear of reprisal for failing to vote for or to support the Umon.3 2 Cross Baking Company, Inc., 191 NLRB 27, reversed on other grounds 453 F.2d 1346 (C.A. 1, 1971). 3 Diamond .State Poultry Co., Inc., 107 NLRB 3. In examining the totality of the circumstances that ex- isted prior to the representation election in this case, one factor I have given consideration to is the number of persons involved in the conduct that was found to have taken place. Another factor I have considered is the number of employees who heard the threats, the nature or subject matter of the threats, and the timing and extent of the property damage at the Employer's prem- ises. In noting some of the numerous findings of the hearing officer, I have relied on his findings about what was said in the threatening remarks as an objective basis for con- sidering those threats, rather than any of the subjective reactions about which some witnesses testified. The hear- ing officer's credibility resolutions and factual findings based on the original hearing on objections were not overturned on review. The court disagreed with the hearing officer's ruling which limited cross-examination by the attorney for the Employer, and the court remand- ed the case for a further hearing and consideration of the issues outlined in the court's memorandum. However, I do not construe the court's action as reversing the hear- ing officer's credibility determinations or factual findings based on the record that was before him Therefore, I have relied on his fmdings, together with the additional facts that were developed on the record in the hearing before me. Felix Osuna was involved in three separate incidents of threats to employees. Horacio Gonzales also was in- volved in three separate incidents. Isidro Martinez was involved in two incidents. Frank McGinnis also was in- volved in two incidents. Jerry Kimball and Jose Gon- zales were each involved in one incident, Although Kimball was identified as having made only one of the threats, there is a similarity in subject matter associated with many of the other threats made by other union supporters. (See G.C. Exh 2(g).) Kimball's threat to Ramirez was that if "we didn't sign, Immigration would take us away." Note the similarity in Osuna's threat made several times to Mancillas in the week prior 1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to the election that "Immigration would come for who- ever did not sign for the Union." (The hearing officer's finding is at page 4 of G.C. Exh 2(g). The remaining quotations in these paragraphs are also derived from the hearing officer's report.) Note also Osuna's threat to a group of employees "that Immigration would come unless 'we got into the Union." Then there were Osuna's threats to Moran "at unspecified times prior to the election" that "if the Union did not win the election they were going to call Immigration." Martinez' threat to Lechuga also is similar to the threat made by Kimball to Ramirez The hearing officer found that Martinez told Lechuga" that "Immigration would come if Lechuga did not sign the card." Martinez also threatened Gomez "that if he didn't sign a card, he would lose his job." McGinnis' warning to Velazquez was "all you Mexicans are afraid of the Union, but you are more afraid when the Immigration comes to take you if the Union doesn't enter into this Company." McGinnis also threatened an- other employee, "if the Union lost the election, Immigra- tion would leave the factory clean." Horacio Gonzalez made a threat similar in nature to Morejon "that if the Union doesn't come in, Immigration will come to get ev- erybody." In addition to the foregoing specific threats regarding Immigration, there also were "rumors in the plant that the Union would call Immigration," according to em- ployees Carrazco, Gomez, and Moran. The hearing offi- cer also found that "Stratford further testified that 20 to 30 employees asked him about the rumors that Union would call Immigration and Stratford told them that it wouldn't happen and the Union had no power to send Immigration to the plant." The similarity in the subject matter of the threats and the repetition of such similar threats is a fact that cannot be ignored. Of course, there were additional threats that did not involve the Immigration service, but those threats were also linked to the employees' union activity. For example, there was Horacio Gonzalez' threat to Serano who was warned "to stop talking for the Compa- ny or something might happen to Serano." Then flora- cio Gonzalez made a threat to Morejon that "if the Union didn't win the election, the employees was going to be badly off." Finally, there was Jose Gonzalez' threat to Rodriguez that "if he didn't sign a card, he would get beaten up," and his retort to Rodriguez that "the Union had men to do that kind of work." Eleven persons, who were employees of the Respond- ent prior to the election, gave the testimony in the hear- ing on objections on which the hearing officer made the findings briefly noted above. (See G.C. Exh 2(g) for the full details.) Some of the persons related threats to other employees on more than one occasion, and Lopez related the threat he made to a group of employees. The actual number of employees who may have heard the threats or the rumors mentioned above cannot be ascertained from the testimony. The attorney for the Respondent persuasively argued in his posthearing brief, as he had done in earlier briefs, that the hearing officer in the original hearing on objec- tions found that there had been "a campaign of threats" by employee supporters of the union. The hearing officer stated at page 6 of his report: There is no doubt that employee supporters of the Petitioner engaged in a campaign of threats of calling Immigration if fellow employees did not sign authorization cards or vote for the Union, threat- ened loss of jobs, physical violence or other vague forms of misfortune. At the same time, however, there is no evidence that these employee supporters of the Petitioner were agents of the Petitioner or were authorized, in any way, by Petitioner to make such threats. In further examining the totality of the circumstances that existed prior to the election, I have considered the incidents of property damage, which the hearing officer found had occurred at the Employer's premises. The timing of those incidents during the time period before the election seems significant in evaluating the atmos- phere that existed at the time of the election since there had previously been "relatively little damage on the Em- ployer's premises," except for the period of a Teamsters strike some 7 years earlier. (See p. 3 of the hearing offi- cer's report.) The incidents of vandalism, which were de- scribed by Stratford, took place after the Union's organi- zational efforts commenced and included slashing tires, damaging buses, and plugging toilets. Espinosa's motor- cycle was damaged on the same day of the election, and it was within 20 to 25 feet from the polling area None of the persons responsible for those incidents of property damage were known, but the timing and the extent of such damage prior to the election are factors that I have considered in examining the total circumstances that ex- isted at the time of the election. To clarify the frequent references made earlier to the number of persons involved, it should be explained that I am not suggesting that a mathematical formula exists that will determine the issues presented here. Instead, the fre- quent mention of the number of employees involved is just one consideration to place these events in the con- text of the large voting group in which the events oc- curred. As the Board stated in Westside Hospital, supra, "experience has shown, as demonstrated herein, that statements made during an election campaign are the subject of discussion, repetition, and dissemination among the electorate." The tally of ballots reveals that there were 691 valid votes cast in the representation election. Of that number, there were 41 votes cast for the Union, and there were 280 votes cast against union representation. Thus, the margin of the Union's victory was 131 votes, which means that a shift of 66 votes from one choice to another choice would have changed the election outcome. Nev- ertheless, mathematical calculations cannot control the legal issues presented here because the Board has stated, "The question of whether there has been unwarranted in- terference with free expression of choice does not turn on election results, or the probable election results." Westside Hospital, supra. In Steak House Meat Co., supra at 29, the Board also held, "As we have said previously, the question of whether or not such an atmosphere exist- CROWN COACH CORP. 1017 ed does not turn on the election results, but rather upon an analysis of the character and circumstances of the al- leged objectionable conduct." While the election results are not a decisive consideration, I have considered, as one circumstance, the numerical size of the voting group, as it existed at the time of the election, to ascertain whether the conduct occurred among a relatively small number of employees or a relatively large group of em- ployees. In the instant case, the 691 employees who cast valid ballots in the election must be considered to be a relatively large voting group in the context of Board- conducted elections at that point in time. As the Board stated in its Forty-Third Annual Report, "For all types of elections in 1978, the average number of employees voting, per establishment, was 51, compared with 53 in 1977. About three-quarters of the collective-bargaining and decertification elections inolved 59 or fewer employ- ees." (See 43 NLRB Ann. Rept. 16 (1978).) There is a similarity, in subject matter at least, be- tween some of the threats made to employees in this case regarding calling the Immigration service and the mis- representations made in Mike Yurosek & Sons, 225 NLRB 148 (1976). In enforcing the Board's subsequent Order in that matter, which is reported at 227 NLRB 1936 (1977), the United States Court of Appeals for the Ninth Circuit succinctly summarized the pertinent facts on that issue in its decision, NLRB v. Mike Yurosek & Sons, Inc., 597 F.2d 661, 662-663 (9th Cir. 1979), as follows: The first and most substantial charge was that misrepresentations were made to the effect that if the employees did not vote in favor of the union, the Immigration and Naturalization Service would be informed of the names of any illegal aliens who were members of the employees' bargaining unit. There is little doubt that the subject of possible Im- migration and Naturalization Service investigation was discussed by the employees during the election campaign, one of the occasions being in a group of 25 or 30 employees walking together to work. Beyond this, however, the contents of this and other rumors are confused and the evidence is in conflict as to who was repeating them. There was at least some evidence of a conflicting rumor, to the effect that an Immigration and Naturalization Serv- ice investigation would be avoided by defeating the union. While there were creditable witnesses who testi- fied that pro-union employees warned that imtnigra- don inspectors would appear if there were a union loss, at least two union members contradicted that claim and a member of the union organizing com- mittee told employees that the rumors were un- founded. Finally, there was testimony that at least one union officer denied that the union had any intent to expose illegal aliens. The factual situation, which was present in the Mike Yurosek case, seems to be distinguishable from the facts in the present case. Rather than confusing rumors and conflicting evidence concerning the persons who were repeating such rumors, the evidence in this case is specif- ic about who made the threats and specific as to what the threats were. In the instant case, unlike Mike Yuro- sek. there were not contradictions or denials of the sub- ject matter of the threats. There was some testimony by Hendricks who had been told that it was the Respond- ent, rather than the Union, which would call Immigra- tion. However, the number of specific threats found by the hearing officer in this case regarding the Union call- ing Immigration substantially outnumbers the incidents related by Hendncks. Considering these circumstances, I conclude that the factual situation in the instant case is different from the factual situation in Mike Yurosek. Although I have concluded that the objectionable con- duct described was not attributable to the Union, I con- clude that "the conduct created a general atmosphere among the voting employees of confusion and fear of re- prisal for failing to vote for or to support the Union." Steak House Meat Co., supra. In summary, I reach that conclusion based on: (1) the number of employees who heard the threats; (2) the Board's holding in Westside Hospital, supra, "experience has shown, as demonstrated herein, that statements made during an election campaign are the subject of discussion, repetition, and dissemina- tion among the electorate"; (3) the importance of the Im- migration issue, as revealed on this record by the testi- mony and exhibits that dealt specifically with that issue; (4) the coercive nature of the threats regarding the Im- migration service and the threats of bodily harm; (5) the number of union supporters who made the threats, and the similarity between the threat made by Kimball, who was an active and prominent union supporter, and the threats made by certain others; (6) the timing and the extent of the property damage at the Employer's prem- ises, which was unusual and which occurred after the commencement of the union organizing campaign among the employees. Based on the foregoing conclusion, I further conclude that such objectionable conduct in these circumstances would warrant the setting aside of the election and the withdraWal of the certification. Accordingly, I must rec- ommend to the Board that the General Counsel's com- plaint in this proceeding be dismissed because the com- plaint is predicated on the validity of the election and the certification in the underlying representation case. Be- cause of the conclusion and recommendation made above, it is unnecessary to discuss here the events that occurred after the election. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3.The Respondent has not engaged in the unfair labor practices alleged in the general Counsel's complaint for the reasons which have been set forth above. 1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 1 ORDER It is recommended that the complaint in this proceed- ing be dismissed in its entirety. 1 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur- Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the poses.