Antioch Rock & Ready Mix

National Labor Relations Board - Board Decisions

Mar 30, 1999

327 N.L.R.B. 1091 (N.L.R.B. 1999)

ANTIOCH ROCK & READY MIX 1091
Nor-Cal Ready Mix, Inc., d/b/a Antioch Rock &
Ready Mix and Machinists District Lodge 190,
Local Lodge 1173, International Association of
Machinists and Aerospace Workers, AFL–CIO
and Operating Engineers Local Union No. 3, In-
ternational Union of Operating Engineers,
AFL–CIO, Joint-Petitioners. Cases 32–RC–4443,
32–RC–4448
March 30, 1999
DECISION AND DIRECTION
BY MEMBERS FOX, LIEBMAN, AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered objections and determina-
tive challenges to ballots cast in an election held June 11,
1998, and the Regional Director’s and hearing officer’s
reports (attached as an appendix ) recommending dispo-
sition of them.1 The election was conducted pursuant to a
Stipulated Election Aagreement. On June 12, 1998, the
Regional Director served on the parties a revised tally of
ballots in Cases 32–RC–4443 and 32–RC–4448, which
showed 2 for and 1 against the Joint-Petitioners, with 3
challenged ballots, a sufficient number to affect the re-
sults, and no void ballots.2
The Board has reviewed the Regional Director’s report
in light of the exceptions and brief and has adopted the
Regional Director’s findings and recommendations.3 The
Board has also reviewed the attached hearing officer’s
report in light of the exceptions and briefs, and has de-
cided, contrary to the recommendation of the hearing
officer, to overrule the Employer’s Objections 1 and 2.4

1 This case was originally consolidated with Case 32–RC–4449. In
an unpublished Order dated November 30, 1998, the Board severed and
remanded that case for the purpose of holding a second election.
2 The original tally of ballots, served on the parties at the conclusion
of the election in Cases 32–RC–4443 and 32–RC–4448, showed 2 for
and 1 against the Joint-Petitioners, with 2 challenged ballots, a suffi-
cient number to affect the results, and one void ballot.
3 The Regional Director recommended that Employer Objection 3 be
overruled. That objection asserted that the Board agent who conducted
the election interfered with its results by altering the tally of ballots and
changing a clearly void ballot to a challenged ballot. We agree with the
Regional Director’s disposition of Employer Objection 3. Even assum-
ing, arguendo, that the Joint-Petitioners’ protest to the Board agent that
the ballot was void was procedurally defective, there is no evidence or
contention that the Employer was prejudiced thereby. Further, in light
of the hearing officer’s determination that the disputed ballot was void,
the matter is moot.
Contrary to his colleagues, Member Brame would have directed a
hearing with respect to Employer Objection 3. The Joint-Petitioners did
not challenge the void ballot determination during the count and did not
file written objections concerning this matter after the election. In
Member Brame’s view, there is at least a question whether the Joint-
Petitioners’ challenge to the void ballot determination was properly
before the Board in those circumstances. In light of the subsequent,
undisputed, finding by the hearing officer that the ballot is void, how-
ever, Member Brame agrees that this procedural issue is effectively
moot.
4 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s determination that the challenges to the ballots cast by Sam Cast
and Pam Bailey be overruled and that the ballot originally declared
void by the Board agent who conducted the election be declared a void
ballot.
On June 11, 1998,5 separate elections were held in two
units of the Employer’s employees: (1) in Cases 32–RC–
4443 and 32–RC–4448, Machinists District Lodge 190
and Operating Engineers Local 3, as Joint-Petitioners,
sought to represent a unit of mechanics, lubrication em-
ployees, parts runners, equipment operators and batch
plant operators (the mechanics unit); and (2) in Case 32–
RC–4449, Teamsters Local 315 sought to represent a
unit of drivers, plant yardmen, and warehousemen (the
drivers unit). Employer Objections 1 and 2 assert that the
results of both elections must be set aside because of
threats of physical and other harm by the Unions, their
agents, and supporters.
The hearing officer found that, prior to the election,
mixer driver Thomas Pease threatened fellow drivers
Gonzalo Ramos, Wanda Covarrubias, and Ron McCoy
with various reprisals if they did not vote for the “Un-
ion.” Following is a summary of the pertinent evidence
on these threats, which are described at greater length in
the hearing officer’s report.
The hearing officer found that, a day or two before the
election, Pease, by his words to Ramos, conveyed the
message in an angry and threatening manner that Ramos
had better vote for the Petitioner or there would be seri-
ous consequences. The hearing officer found, however,
that Pease’s threat to Ramos was not disseminated to any
employee in either unit until after the election, when
Ramos told McCoy about the incident.
The hearing officer also found that, while at a bar a
few weeks before the election, Pease asked Covarrubias
four or five times how she was going to vote, and she
said she was not going to tell him. Pease told Covar-
rubias at least four times that he knew people’s landlords
and could have them removed from their homes and that
he was “a person that gets things done,” while pointing
his finger at Covarrubias. The hearing officer noted that
subsequent to the encounter in the bar Covarrubias con-
fronted Pease at a union meeting held on May 21 at the
Red Caboose tavern and complained about his threats to
her. There were about 20–40 individuals present, includ-
ing employees of the Employer, employees of other em-
ployers, and officials of the Petitioner and Joint-
Petitioners. However, there is no evidence that any of the
individuals were employees in the mechanics unit. The
hearing officer found that Covarrubias had consumed six
alcoholic drinks prior to her appearance at the May 21
meeting, that she had two more at the meeting, that she
was “completely out of control” there, and that there was
no indication that anyone at the meeting gave any cre-
dence to her statements or, because of her condition, took
her seriously.

5 All dates hereafter are in 1998.
327 NLRB No. 187
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1092
The hearing officer additionally found that, in the days
after the meeting, employees approached Covarrubias
about what she had said, and she then discussed with
about seven other named employees the confrontation
she had had with Pease. Although the hearing officer
made no finding concerning the identity of the persons
with whom Covarrubias spoke, in her testimony at the
hearing Covarrubias identified those with whom she
spoke as individuals named “Whitie,” “Tammy,” “Den-
nis,” “Lee,” “Ringo,” “Jimmy,” and “Sammy.”6
The hearing officer also found that, a day or two after
the May 21 union meeting, Pease told McCoy that he
was going to have his niece “kick Wanda [Covarrubias]’s
f—king ass” because of the statements she made about
him at the union meeting. In addition, the hearing officer
found that 2 or 3 days before the election, Pease told
McCoy in a loud and angry voice that he had heard
McCoy and some of the other drivers were planning to
vote against the union, that he hoped it was not true, that
he should let everyone know that it would not be a good
idea, that they had better have a life insurance policy, and
that the Petitioner in Case 32–RC–4449 had made him a
“special rep.” When McCoy asked what Pease meant
about having a life insurance policy, Pease replied that it
should cover accidental death, that the nion knew how to
take care of people who were against it, they were not
afraid to kill if necessary, and that they had a person on
contract. Pease also told McCoy that he had connections
with the Board and could find out how McCoy voted,
and that he had a family and friends and it would not be
worth “fucking around with.” The hearing officer found
that four or five drivers heard the conversation in which
Pease threatened McCoy 2 or 3 days before the election.
The hearing officer did not find that Pease’s other state-
ments to McCoy were disseminated.
The hearing officer found that Pease was not an agent
of the Unions involved in these elections.7 Applying the
third-party misconduct standard, the hearing officer
nonetheless found that Pease’s threats constituted con-
duct which was “so aggravated as to create a general
atmosphere of fear and reprisal rendering a free election
impossible.” Westwood Horizons Hotel, 270 NLRB 802,
803 (1984). In this regard, the hearing officer apparently
relied upon the serious nature of the threats, the prox-
imity to the election, and the evidence of dissemination,
cited above, as well as the vote margin in the two elec-
tions.
No party excepted to the hearing officer’s conclusion
that the election in Case 32–RC–4449 (the drivers unit)
should be set aside on the basis of the objectionable con-
duct set forth above. The Board adopted the hearing offi-
cer’s recommendation in this regard, in the absence of

6 Covarrubias testified that both Jimmy and Sammy worked in “dis-
patch.”
7 There are no exceptions to this finding.
exceptions, and has remanded that case to the Regional
Director for the purpose of holding a second election.
With regard to the election in Cases 32–RC–4443 and
32–RC–4448 (the mechanics unit), however, the Joint-
Petitioners note that all of the objectionable conduct cited
by the Employer involved employees in the drivers unit
and that the hearing officer made no finding of dissemi-
nation to any eligible voter in the mechanics unit. Ac-
cordingly, the Joint-Petitioners assert that Pease’s threats
provide no basis for setting aside the election in the me-
chanics unit. We find merit to these exceptions.
“Representation elections are not lightly set aside.”
NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 328
(5th Cir. 1991) (citing NLRB v. Monroe Auto Equipment
Co., 470 F.2d 1329, 1333 (5th Cir. 1972), cert. denied
412 U.S. 928 (1973)). Thus, “[t]here is a strong presump-
tion that ballots cast under specific NLRB procedural
safeguards reflect the true desires of the employees.”
NLRB v. Hood Furniture Mfg. Co., supra, 941 F.2d at
328. Accordingly, “the burden of proof on parties seek-
ing to have a Board-supervised election set aside is a
‘heavy one.’” Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808
(6 th Cir. 1989) (quoting Harlan #4 Coal Co. v. NLRB,
490 F.2d 117, 120 (6th Cir.), cert. denied 416 U.S. 986
(1974). See also Chicago Metallic Corp., 273 NLRB
1677, 1704 fn. 163 (1985), quoting Valley Rock Products
v. NLRB, 590 F.2d 300, 302 (9th Cir. 1979). The object-
ing party must show, inter alia, that the conduct in ques-
tion affected employees in the voting unit. Avante at
Boca Raton, Inc., 323 NLRB 555, 560 (1997) (overruling
employer’s objections where no evidence unit employees
knew of alleged coercive incident). And the objecting
party must establish dissemination of statements alleg-
edly interfering with preelection conditions; dissemina-
tion will not be presumed. Kokomo Tube Co., 280 NLRB
357, 358 including fn. 9 (1986). The Employer here has
not established that this election must be set aside.
As noted above, the Board conducted two separate
elections at the Employer’s premises on June 11 in two
entirely separate units. The hearing officer’s findings
establish that, prior to the election, threats were made to
employees in the drivers unit. However, there is no evi-
dence or contention that any threats were made, by Pease
or anyone else, to an eligible voter in the mechanics unit.
As discussed below, there is also no evidence that the
threats Pease made to employees in the drivers unit were
disseminated within the mechanics unit. Accordingly, the
hearing officer’s finding that the threats affected em-
ployee free choice in that unit must be reversed.
There is no evidence or contention that Pease’s threats
to Ramos or McCoy were ever disseminated to any me-
chanics unit employee. Likewise, there is no evidence
that Pease’s threats to Covarrubias were disseminated to
any eligible voters in the mechanics unit during the May
ANTIOCH ROCK & READY MIX 1093
21 union meeting.8 Accordingly, there is no basis for
finding that these threats had any impact on the election
in the mechanics unit.
As noted above, the hearing officer found that, after
the May 21 union meeting, Covarrubias discussed her
confrontation with Pease with the following individuals:
Whitie, Tammy, Dennis, Lee, Ringo, Jimmy, and
Sammy. There is no record evidence concerning the
identity of Tammy, Lee, Ringo, or Jimmy, and no party
contends that they are eligible voters in the mechanics
unit.9 However, the Employer asserts that Whitie, Den-
nis, and Sammy are, respectively, mechanics unit em-
ployees Robert McMillan, Dennis Arnold, and Sam Cast,
and that this testimony accordingly establishes dissemi-
nation of Pease’s threats within the mechanics unit. We
do not agree.
There is no record evidence concerning the identity of
Whitie and Dennis and, in the absence of such evidence,
we cannot accept the Employer’s contention that these
individuals are the named mechanics unit employees.
While Covarrubias did identify Sammy as mechanics
unit employee Sam Cast, there is no competent evidence
concerning the substance of her conversation with him,
and thus, no evidence that Pease’s threat was dissemi-
nated in the course of this conversation. In this regard,
Cast, although called as a witness in this case, was never
asked if Covarrubias (or anyone else) had told him about
any threats they had received, from Pease or anyone else.
Likewise, Covarrubias never testified specifically that
she told Cast that Pease had threatened her. Thus, at the
hearing, Covarrubias was asked on direct examination if,
“at any time following this second [May 21] union meet-
ing and the confrontation at the Red Caboose . . . did you
ever discuss those matters with other employees at An-
tioch Rock.” Covarrubias answered that “several em-
ployees” approached her. She identified, inter alia, Cast
as one of these individuals, but failed to specify the con-
tent of her conversations with Cast.10 Later, on cross-
examination, Covarrubias was asked the following ques-
tion:

8 As noted above, the hearing officer found that Covarrubias com-
plained about Pease’s threats at the May 21 union meeting, although
she also found that, in light of Covarrubias’ admittedly inebriated con-
dition, no one at that meeting “seemed to take Covarrubias’ complaints
about Pease seriously.” In any event, there is no evidence that any
mechanics unit employee was in attendance at the meeting, and thus no
evidence that Pease’s threats were disseminated to any eligible voter in
the mechanics unit at that time.
9 Covarrubias’ testimony that Jimmy worked in dispatch is insuffi-
cient, without more, to establish that this individual was an eligible
voter in the mechanics unit, and we note that the Employer makes no
contention to the contrary.
10 The Employer’s attorney asked Covarrubias if she discussed her
statements at the union meeting during the course of each of the post-
meeting conversations. The hearing officer sustained an objection to the
question and suggested that the Employer’s attorney ask about each
separate conversation in turn. The Employer’s attorney started to do
so—beginning with conversations with Tammy—but then abandoned
that line of questioning.

When you were testifying on direct examination about
coworkers whom you had discussed these alleged inci-
dents with Tom Peace [sic], involving Tom Pease, you
mentioned Whitie, Tammy, Dennis, Lee and dispatch;
do you remember that?11

There is no basis for inferring that Covarrubias’ brief af-
firmative response to this leading question establishes that
she told Cast about the specific threats made by Pease which
are at issue in this proceeding.
Under these circumstances, we cannot conclude that
any “conversation” between Covarrubias and Cast in-
cluded dissemination of Pease’s alleged implicit threat to
have Covarrubias evicted from her home if she did not
vote union. Accordingly, we find that Pease’s threats
were not disseminated to any eligible voter in the me-
chanics unit and thus have not been shown to have had
any impact on the election in the mechanics unit.
For the foregoing reasons, we find that the Employer’s
Objections 1 and 2 must be overruled. We shall accord-
ingly remand Cases 32–RC–4443 and 32–RC–4448 to
the Regional Director for the purpose of opening and
counting the challenged ballots cast by employees Sam
Cast and Pam Bailey, preparing and serving on the par-
ties a revised tally of ballots, and issuing the appropriate
certification.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 32 shall, within 14 days from the date of this Deci-
sion, open and count the ballots cast by employees Sam
Cast and Pam Bailey. The Regional Director shall then
prepare and serve on the parties a revised tally of ballots
and issue the appropriate certification.
APPENDIX
HEARING OFFICER’S REPORT AND
RECOMMENDATIONS ON DETERMINATIVE
CHALLENGED BALLOTS AND EMPLOYER’S
OBJECTIONS TO THE ELECTIONS
Pursuant to a Stipulated Election Agreement in Cases 32–
RC–4443 and 32–RC–44481 approved by the Regional Director
for Region 32 on May 14, 1998, an election by secret ballot
was conducted on June 11, 1998, among the employees of the
Employer in the following appropriate collective-bargaining
unit:

All full-time and regular part-time mechanics, lubrication em-
ployees, parts runner, equipment operators, and batch.plant
operators employed by the Employer at its Antioch and
Byron, California facilities (also included are any Antioch or
Byron bargaining unit employees assigned to the Employer’s
Rio Vista facility); excluding all drivers, sales employees, of-
11 Covarrubias later identified Cast, who is in a batchman position,
as one of the employees in dispatch to whom she was referring.
1 Joint-Petitioners originally filed petitions for separate units. They
later decided to combine those units into a single unit, which they now
seek to represent jointly.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1094
fice clerical employees, managerial and administrative em-
ployees, all other employees, guards, and supervisors as de-
fined in the Act.

Upon conclusion of the election, a copy of the official re-
vised tally of ballots reflecting the following results was served
on each of the parties in accordance with the Rules and Regula-
tions of the Board:2

Approximate number of eligible voters 6
Void ballots 0
Votes cast for Joint-Petitioner 2
Votes cast against participating labororganization 1
Valid votes counted 3
Challenged ballots 3
Valid votes counted plus challenged ballots 6

The challenged ballots were sufficient in number to affect
the results of the election. Pursuant to a Stipulated Election
Agreement in Case 32–RC–4449 approved by the Regional
Director for Region 32 on May 14, 1998, an election by secret
ballot was also conducted on June 11, 1998, among the em-
ployees of the Employer in the following appropriate collec-
tive-bargaining unit:

All full-time and regular part-time drivers, including ready
mix, aggregate, cement, end dump, transfer, pneumatic, water
truck, and flat rack drivers, plant yardmen, and warehouse-
men employed by the Employer at its Antioch and Byron,
California facilities (also included are any Antioch or Byron
bargaining unitemployees assigned to the Employer’s Rio
Vista, California facility); excluding all mechanics and lubri-
cation employees, batchpersons, front-end loader operators,
sales employees, office clerical employees, managerial and
administrative employees, all other employees, guards, and
supervisors as defined in the Act. Upon conclusion of the
election, a copy of the official Tally of Ballots reflecting the
following results was served on each of the parties in accor-
dance with the Rules and Regulations of the Board:

Approximate number of eligible voters 43
Void ballots 1
Votes cast for Petitioner 20
Votes cast against participating labor organization 16
Valid votes counted 36
Challenged ballots 2
Valid votes counted plus challenged ballots 38

The challenged ballots were not sufficient in number to affect
the results of the election.
The Challenged Ballots in Cases 32–RC–4443 and
32–RC–4448
The ballot of Pam Bailey was challenged by the Employer
on the ground that she is an office clerical employee. The ballot
of Sam Cast was challenged by Joint-Petitioners on the ground
that he is a statutory supervisor. The Joint-Petitioners chal-
lenged a ballot which the Board agent conducting the election
had orginally determined to be void.

2 The Board agent who conducted the election originally determined
that one ballot was void, and on June 11, 1998, served on the parties a
tally of ballots. On June 12, 1998, she served on the parties a revised
tally of ballots reflecting Joint-Petitioner’s challenge to that ballot.
The Objections
The Employer filed the following objections to both elec-
tions:

1. The Unions, by their agents and supporters, inter-
fered with the fair operation of the election process and
destroyed the necessary laboratory conditions by intimi-
dating employees with bodily and other severe harm, in-
cluding loss of homes, if they did not commit to voting for
the Union, or did not vote for the Union, or in the event
the Union lost the election.
2. The Unions, by their agents and supporters, inter-
fered with the fair operation of the election process and
destroyed the necessary laboratory conditions by threaten-
ing to physically beat employees who spoke out against
the Union.

In addition to the above two objections, the Employer filed
the following objection to the election conducted in Cases 32–
RC–4443 and 32–RC–4448:

3. The National Labor Relations Board, by it[s] agents
and employees, interfered with the fair operation of the
election process, otherwise interfered with the results of
the election, and destroyed the necessary laboratory condi-
tions by altering the tally of ballots and changing a clearly
void ballot to a challenged ballot.

Acting pursuant to Section 102.69 of the Board’s Rules and
Regulations, Series 8, as amended, the Regional Director con-
ducted an administrative investigation of the determinative
challenges and Employer’s objections. On July 8, 1998, the
Regional Director issued a Report and Recommendations on
Challenged Ballots and Objections and Notice of Hearing. In
the Report, the Regional Director recommended to the Board
that Employer’s Objection 3 be overruled, finding that since the
alleged objectionable conduct occurred after the polls had
closed, it could have had no impact on how any employee
voted in the election. The Regional Director also concluded in
the report that the Employer’s and Joint-Petitioners challenges,
as well as Objections 1 and 2, in Cases 32–RC–4443 and 32–
RC–4448 raised material issues of fact and law which could
best be resolved by a hearing.
On July 21, 22, and 29, 1998, a hearing was held before
Hearing Officer Marilyn O’Rourke for the sole purpose of re-
solving the challenges and Objections 1 and 2. The hearing was
conducted in accordance with the provisions of Section 102.69
of the Board’s Rules and Regulations, Series 8, as amended. All
parties present at the hearing were afforded a full opportunity to
be heard, to present and examine witnesses, to introduce rele-
vant evidence, and to present oral arguments during the course
of the hearing. Upon the entire record of the proceedings, I
make the following findings of fact, conclusions of law, and
recommendations.
The Challenged Ballots
Pam Bailey. The Employer challenged the ballot of Pam Bai-
ley on the ground that she is an office clerical employee.3 Joint-
Petitioners contend that she is a plant clerical employee entitled
to inclusion in the unit.
3 The Employer had included Bailey on the list of eligible voters it
submitted to the Regional Office.
ANTIOCH ROCK & READY MIX 1095
Bailey and her supervisor, Operations Manager John Malnar,
credibly testified regarding Bailey’s duties and working condi-
tions. Bailey testified that no one in management had ever told
her what her job title was. Although Malnar testified that she is
“basically a filing clerk” in the shop to maintain records and
order parts, he stated that he was not sure she was ever given a
title.
Malnar testified that he is responsible for scheduling and
maintenance and repairs on plants and equipment. In addition
to Bailey, Malnar supervises the mechanics. He does not super-
vise anyone who works outside the shop. Both Bailey and Mal-
nar testified that Bailey works in an office in a corner of the
shop where the mechanics work; no other employees work in
the shop. The shop is in a separate building from the main of-
fice. Bailey testified that she spends about 45 minutes to an
hour in the shop itself during her approximately 4-hour shift.
Bailey and the other employees who work in the shop punch
the same timeclock, which is located in her office.
Bailey testified that one of her duties at the time of the elec-
tion was to maintain records on the computer. She maintains all
repair orders on each of the Employer’s trucks, prices and in-
ventory stock of parts, and records on vendors.4 She also main-
tains hard copy or paper files for each truck, including records
required by the California Highway Patrol and U.S. Department
of Transportation. Drivers submit pretrip reports to Bailey
where they note any problems with the truck to which they
have been assigned. The pretrip reports are given to the me-
chanics. Mechanics fill out repair orders, and, after the repairs
are completed, submit them to Bailey for filing. When the me-
chanics need parts for repairs, they go to Bailey and tell her
what to purchase. She then contacts vendors and orders the
parts, which are usually delivered by the vendors. Bailey re-
ceives the parts and places them in the stockroom. She also
checks the stockroom to see whether any of the Employer’s
regular stock needs replenishing.5 Bailey delivers the original
invoice and a copy of the purchase order to the accounting de-
partment in the main office building. That is the only occasion
where she goes to the other building. She also keeps copies of
the purchase orders and invoices in her office. Bailey maintains
records on warranty repairs as well. Mechanics have access to
all these records.
Malnar’s testimony on Bailey’s duties was in accordance
with Bailey’s testimony. Malnar testified that the only corre-
spondence Bailey types is that related to the shop or to mainte-
nance in the shop. He also testified that Bailey checks with the
lead mechanic regarding any unclear maintenance records.
Malnar testified that prior to hiring Bailey, he performed her
duties for about 2 months.6 Prior to that, the mechanics had
done the work she now does. Malnar also testified that when
Bailey, who is part time, is not present, the mechanics order
parts from vendors.
The distinction between office and plant clericals is rooted in
community-of-interest concepts. Cook Composites & Polymers
Co., 313 NLRB 1105, 1108 (1994); Minneapolis-Moline Co.,

4 Malnar testified that the Employer has 62 mixer trucks, 11
sets of bottom dumps, 2 transfers, and 2 pneumatic trailers, plus
the power units to pull them.
5 Malnar testified that it is the lead mechanic’s responsibility to see
that inventory of commonly used parts is maintained.
6 Malnar testified that just prior to Bailey’s hire, a young man was
employed in her job for about 1-1/2 months, but he did not work out.
85 NLRB 597, 598 (1949). Employees who perform clerical
duties in close association with the production process and with
production or maintenance employees are considered plant
clericals and are included in the same unit as production em-
ployees. Brown & Root. Inc., 314 NLRB 19, 23 (1994); Good-
man Mfg. Co., 58 NLRB 531, 533 (1944).
The testimony summarized above shows that Bailey is a
plant clerical who should be included in the unit. Bailey and all
other shop employees are supervised by Malnar, who does not
supervise any office clerical employees. Sears. Roebuck & Co.,
222 NLRB 476, 477 (1976) (common supervision). Bailey
punches the same timeclock as the other shop employees. Her
work location in the shop is in a building separate from that in
which office clericals work. See ITT Lighting Fixtures, 249
NLRB 441, 442 (1980) (plant clerical worked in office separate
from office clericals), enf. denied on other grounds 658 F.2d
934 (2d Cir. 1981), cert. denied 466 U.S. 978 (1983). Bailey
performs work which pertains solely to the maintenance and
repair of trucks and other equipment. See Raytee Co., 228
NLRB 646, 647 (1977) (employee whose responsibilities were
directly concerned with unit work held to be plant clerical). Her
work was previously performed by the mechanics, and some of
it is currently performed by mechanics when she is not present.
See Regal Thread & Notion Co., 221 NLRB 610, 611 (1975).
Bailey’s contact with those working in the building where the
main office is located is minimal; it consists only of delivering
copies of invoices and purchase orders to the accounting de-
partment. See ITT Lichting Fixtures, supra, 249 NLRB at 442.
In short, the testimony clearly shows that Bailey’s community
of interest is with the other employees in the shop and not with
office clerical employees. Bailey’s position should be included
in the unit. I therefore recommend that the challenge to her
ballot be overruled.7
Sam Cast. Joint-Petitioner challenged the ballot of Sam Cast
on the basis that he is a supervisor. In support of this position,
the only witness Joint-Petitioner presented was Bailey. Bailey
testified that Cast works in the dispatch office, but had no
knowledge of his job duties.
Cast testified for the Employer. He stated that prior to about
July 1998, and since about April 1998, his job has been batch-
man.8 Cast receives invoices from the dispatcher which contain
the formula and amount for batched products. He enters that
into a computer, operates the batch machine, and places the
batched products into the trucks. Cast stated that he does not
hire employees, discipline or fire employees, supervise or direct
7 Bailey referred to herself as a parts runner and testified that she
sometimes picks up parts from vendors. Malnar testified that he was
aware that she had picked up parts, but that it was not part of her duties
and there is no such position as parts runner. Parts runner was listed in
the Stipulated Election Agreement as one of the positions included in
the unit, however. Bailey’s and Malnar’s testimony was in disagree-
ment as to how frequently Bailey picked up parts. Since the only posi-
tions other than parts runner listed for inclusion in the unit are mechan-
ics, lubrication employees, equipment operators, and batch plant opera-
tors—which Bailey obviously is not—parts runner presumably was
included to cover Bailey, who, as noted above, was included in the
eligibility list submitted by the Employer. In any event, in view of the
overwhelming evidence supporting a plant clerical finding, it is unnec-
essary to resolve any issues regarding the frequency of Bailey’s picking
up parts or whether such a task is within her job duties.
8 Cast testified that in about January 1998, he was promoted to a po-
sition called plant supervisor, but he later decided to return to his
batchman position.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1096
the activities of employees, and does not have the authority to
do those things. Section 2(11) of the Act defines a supervisor
as,

any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with
the foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.

There is no evidence in the record that Cast has any supervisory
authority within the meaning of Section 2(11) of the Act. Thus,
Cast’s position should be included in the unit. I recommend that
the challenge to his ballot be overruled.
The challenged ballot which was originally determined to be
void. The ballot which was originally determined to be void by
the Board agent was challenged by the Joint-Petitioner. The
ballot attached as Appendix A shows that the voter placed di-
agonal marks in both the “yes” and “no” boxes, with the mark
in the yes box extending further beyond the boundaries of the
box than does the mark in the no box. This slight distinction
does not indicate the voter’s intention. I therefore conclude that
the ballot is void.
The Obiections
Objections 1 and 2 contain general allegations of threats of
physical harm to employees by union agents and supporters,
with Objection 1 also including a threat of loss of homes, if
employees did not support the Unions. Hearing testimony
shows that these objections are based on allegations of threats
made by mixer driver Thomas Pease, which the Employer con-
tends affected the results of both elections. Because of the simi-
larity between and the general nature of the two objections,
they will be treated together.
The alleged threat to Gonzalo Ramos. Cement truckdriver
Gonzalo Ramos testified that about a day or two before the
election, Pease came walking toward him angrily pointing his
finger in his face and told him that he “should think about what
[he] was going to do” and that “the Union said that the Delta
wasn’t only full of fish.” Ramos testified that Pease also told
him that he knew how he was going to vote because they had
somebody in Labor and would find out and that he’d “better do
it if [he] didn’t want to have problems with him and you know,
family problems.” Ramos stated that Pease called him a “fool . .
. . asshole, tucking Mexican” and “consuelo.” Ramos testified
that there were no witnesses to this incident, that the only em-
ployee he reported the incident to was driver Ron McCoy, but
that he did not tell McCoy until after the election.9
Pease testified that during this conversation, he told Ramos
that he was sure he understood, that he knew what to do, and
that it would be best for his family if he went ahead with the
Union with all the benefits. Pease denied making the other
statements that Ramos testified he had made.
I credit the testimony of Ramos over that of Pease regarding
this conversation.10 Although Ramos may not have understood
9 Ramos testified at the hearing through an interpreter. He testified
that he and Pease spoke to each other in English, but that he does not
comprehend much English.
10 With the exception of Rodrick Murie, I do not have complete con-
fidence in the testimony of any of the witnesses who testified on the
everything Pease said to him because of his limited English
skills, the testimony of both Ramos and Pease shows that they
always converse with each other in English, which they would
not do if Ramos’ skills were too limited. Thus, while recogniz-
ing that Ramos may not have understood everything that Pease
said to him during the conversation in question, I find that
Pease did convey the message in an angry and threatening
manner that Ramos had better vote for the Petitioner or there
would be serious consequences.
The alleged threats to Wanda Covarrubias. Mixer truck-
driver Wanda Covarrubias testified that a couple days before
the May 21, 1998 union meeting, she was sitting at the bar in
the Antioch Saloon when Pease came in. Covarrubias stated
that she offered Pease a beer, which he accepted. She testified
that Pease asked her how she was going to vote, and that she
responded that she would vote what was best for her family.
According to Covarrubias, Pease then, with his finger pointing
in her face, told her, “if this didn’t go union he was going to—
he knew things about a lot of people and he would fuck them
all up[;] he was going to fuck everybody[; a]nd that he knew
how to get things done from the people’s landlords and he
could have people thrown out of their homes.” She states that
Pease said this several times and then left. Covarrubias testified
that Pease was “projecting anger and, I would say, hatred” to-
ward her, that that surprised her because they had always gotten
along and “always drank together.” She stated that she had been
behind in her rent and that Pease had been friends with her
landlord for many years. Covarrubias also stated, however, that
her landlord was a “kind man,” that she knew he would not
evict her if she came up with her rent, and that she knew she
would catch up with the rent. Covarrubias further testified that
she and Pease had always gotten along, often drank together,
and had been friendly prior to this incident.
Rodrick Murie, who is part owner of the Antioch Saloon and
Covarrubias’ fiancee, testified that he was bartending at the
time the above incident took place and heard part of the conver-
sation, beginning with Pease’s question about how Covarrubias
would vote. Murie testified that Pease did not have any drinks
while at the Antioch Saloon that day. Murie stated that he heard
Pease ask Covarrubias four or five times how she was going to
vote, and that she responded that she was not going to tell him.
Pease then asked Murie how he thought Covarrubias would
vote, and Murie responded that he did not know. Murie testified
that Pease said at least four times that he knew people’s land-
lords and could have people removed from their homes, and
that he was “a person that gets things done.” Murie stated that
Pease pointed his finger at Covarrubias. Murie testified that he
did not hear Pease say that he was “going to fuck up” people or
words to that effect.
Pease testified that he told Covarrubias that he knew she was
the person going in the office and reporting that he was trying
to organize the union and was trying to get Michael Thornquist,
who works in the office, fired.11 He stated that he also told her
that “they’ve already threatened us here about if they hear any
talk about the Union that we will be punished if not terminated”
and that he was scared for his job just as much as anybody else
and did not need that kind of pressure. Pease further testified

objections. The credibility resolutions are based on my observations of
the proceeding, the demeanor of the witnesses, the internal and external
consistencies in the testimony, and the inherent probability of events.
11 Covarrubias stated that she did not recall Pease making that state-
ment.
ANTIOCH ROCK & READY MIX 1097
that after mentioning the benefits of having a union, he told
Covarrubias not to go back down and tell the office that he was
organizing and trying to get Thornquist fired, and that if he kept
hearing his name mentioned there, he would go down to her
landlord and tell him what was going on with her, that she had
collected unemployment while she was working and had just
gotten a loan or gift from the county to catch up on her bills.
Pease testified that he also asked Covarrubias how it would
look when she went to pay her rent next winter and whether she
would leave her landlord hanging and told her he had known
her landlord all his life and was not going to let that happen. He
denied pointing his finger at Covarrubias.
Covarrubias further testified that in the Employer’s yard a
couple days later, Pease yelled to her from inside his truck that
she did not have to rat on him. She stated that she responded
that she did not rat on him and told him not to bother her any
more. According to Covarrubias, Pease then said he would tell
the Employer that she knew who cut the conveyor belt.12
Pease’s testimony on this incident was that, while a conversa-
tion between he and Covarrubias did take place at that time and
place, he only told her to calm down. He states that she told
him that she did talk to somebody, and that she did not want to
talk to him and to get away from her.
Covarrubias reported these alleged threats at the May 21,
1998 union meeting at the Red Caboose. Testimony was in
general agreement as to what occurred at that meeting. Covar-
rubias testified that she went into the meeting after drinking
four beers and two mudslides, that she had a beer in her hand
when she walked in the meeting area, which she drank, and that
she had another beer at the meeting.
According to the testimony of Covarrubias, Pease, and then-
president of the Petitioner, Dale Robbins, there were 20–40
people at the meeting. Attending were employees of the Em-
ployer and of other employers, as well as officials from the
Petitioner and Joint-Petitioners. Covarrubias testified that at the
beginning of the meeting, she started “screaming and ranting
and raving” about Pease’s alleged statements to her, saying that
Pease was their representative, that she wanted something done
about what he had said to her, that he was “muscling women
and children,” that they were condoning it, and that somebody
should take baseball bats to Pease’s head. Covarrubias also
testified that she “made a complete ass” of herself and was
“completely out of control” at the meeting. All three witnesses
testified that Pease said he did not have to listen to Covarrubias
and then attempted to leave the meeting, but was told to stay
and did stay. Robbins and Pease testified that employees kept
telling Covarrubias to shut up. Covarrubias acknowledged that
employees may have told her that, but that she was screaming
too loud to hear them. Covarrubias testified that several em-
ployees approached her in the days after this meeting and that
she had many conversations with about seven other named
employees about the confrontation she had had with Pease. The
latter testimony was unrefuted.13

12 Covarrubias testified that the conveyor belt had been cut shortly
after the organizing began.
13 Covarrubias additionally testified that Pease had said the follow-
ing to her on other occasions: at her house in about the beginning of
May, Pease allegedly made a reference to shooting the cows of a
neighbor who he said had shot his dog; Pease allegedly told her in the
Employer’s yard some time before the election that he was going to
report driver Earl to another employer Earl works for and have him
fired from that employer for working nonunion for the Employer; Pease
With regard to the different accounts by the three witnesses
as to what Pease said to Covarrubias in the Antioch Saloon, I
find the testimony of Murie to be the most credible and credit
his version over those of Covarrubias and Pease.14 Murie testi-
fied that Pease told Covarrubias that he knew people’s land-
lords and could have them removed from their homes. As to the
incident in the yard a couple days afterwards, the only state-
ment Covarrubias claims Pease made which could be consid-
ered threatening—that he would tell the Employer she knew
who cut the conveyor belt—was not linked to the election.
As shown above, at the May 21, 1998 union meeting, Covar-
rubias complained about Pease’s alleged conduct. She testified
that she had had eight alcoholic drinks, some of them at the
meeting, and that she was completely out of control. Employees
told Covarrubias to “shut up,” apparently until she did. At the
meeting, there was no indication that anyone conducted them-
selves in a manner which would show that any credence was
given to her statements. However, according to Covarrubias’
unrefuted testimony, after the meeting, employees approached
her about what she had said, and she then discussed with them
the confrontation she had had with Pease.
The alleged threats to Ron McCoy. Mixer truckdriver Ron
McCoy testified that a day or two after the union meeting at the
Red Caboose, he saw Pease and Pease’s niece in the parking lot
of the Red Caboose, that Pease told him that he was going to
have his niece “kick Wanda’s fucking ass because of the em-
barrassment and the ratting that she did at the union meeting
and that he was going to have her tits cut off.” McCoy also
testified that Pease said the niece was capable of doing it. How-
ever, McCoy later admitted that Pease never said anything
about his niece’s capabilities and admitted that his own testi-
mony that Pease had done so was not true. McCoy also testified
that he did not remember if anything else was said. Pease de-
nied ever having a conversation with McCoy at which his niece
was present and denied ever making any of the statements
McCoy stated that he had made during that alleged incident.
McCoy also testified that about a week before the election,
Pease told him in the Employer’s yard that “the Union needed
to get voted into the yard and God help the drivers and God
help all the yard itself.” McCoy stated that he asked Pease if
that was a threat and that Pease replied that he could “take it
any fucking way [he] wanted to.” McCoy stated that there were
no witnesses to the conversation. Pease did not testify regarding
this alleged conversation.

allegedly told her that sometime in 1997, he had threatened to shoot the
dog of an employee; and Pease allegedly told her that he had put a dead
animal in the truck of another person. Covarrubias also testified that at
the Antioch Saloon prior to the election, Pease’s niece told her that she
had been talking too much and that if she did not stop, she would “kick
ther] ass.” Such alleged statements, even if made, were not linked to the
elections at issue and consequently would not constitute objectionable
conduct.
14 It is recognized, in making this credibility finding, that Murie did
not hear the entire conversation of Covarrubias and Pease. It should be
noted that Covarrubias undercut the reliability of her own testimony by,
among other things, stating that she had a poor memory and was a
“basket case” when the events to which she testified took place, when
she gave her sworn statement to the Employer, and when she testified
at the hearing. She also acknowledged on cross-examination that she
had previously knowingly filed a false claim for unemployment bene-
fits and was in danger of discharge at the time of the hearing because
charges of driving under the influence of alcohol were then pending
against her.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1098
McCoy testified that on a second occasion about 2 or 3 days
prior to the election, again in the yard, Pease told him in a loud
and angry voice that he had heard that McCoy and some of the
other drivers were planning on voting against the Union, that he
hoped it was not true, that he should let everyone know that it
would not be a good idea, that they had better have a life insur-
ance policy, and that Petitioner had made him a “special rep.”
McCoy testified that he asked Pease what he meant by having a
life insurance policy, and Pease replied that it should cover
accidental death, that the Union knew how to take care of peo-
ple who were against it, they were not afraid to kill if neces-
sary, and that they had a person on contract. McCoy stated that
he again asked Pease if he was threatening him, but said he did
not remember what Pease’ reply was. McCoy further stated that
Pease said he had connections at the Labor Board and could
find out how people voted, and that he told McCoy he had a
family and friends and it would not be worth “tucking around
with.”
McCoy named four or five drivers who he said were 3 to 5
feet away in a position where they could hear this conversation.
None of those drivers testified regarding the alleged incident.
While McCoy testified on direct examination that he told about
five or six employees about these statements, on cross-
examination, he said he could not remember whether or not he
told any other employees.
Pease testified that he did have a conversation with McCoy 2
or 3 days before the election, but denied making the statements
that McCoy testified he had made. His version of the conversa-
tion was completely different. Pease testified that McCoy said
he wanted to vote “yes” and asked if Petitioner could make any
promises. According to Pease, he replied that all the Petitioner
could do was negotiate and apply pressure in negotiations and
that it would win without a strike. I find it highly unlikely that
McCoy, the Employer’s election observer and an outspoken
opponent of the Petitioner prior to the election, would have had
such a discussion with Pease, particularly that he would have
told Pease that he wanted to vote yes.
With regard to the incident which McCoy testified took place
about a week before the election, I find that the reported state-
ments are too vague to constitute a threat. As for the other two
incidents, although McCoy may have embellished upon his
testimony, I find that Pease did threaten McCoy and that four or
five other drivers heard the conversation which took place 2 or
3 days before the election.
The alleged agency status of employee Thomas Pease. The
Employer maintains that Pease is an agent of both the Petitioner
and Joint-Petitioners. The Employer’s and the Petitioner’s wit-
nesses testified that Pease spoke to drivers about supporting the
Petitioner, solicited employees to sign authorization cards,
helped set up union meetings, and served as the election ob-
server for the Petitioner. The Board has held that such activities
on the part of an employee are insufficient to make the em-
ployee an agent of the union. See, for example, Advance Prod-
ucts Corp., 304 NLRB 436, 436 (1991) (employee who was
member of in-house organizing committee, solicited support for
union, distributed union literature, buttons, hats, and shirts, kept
union informed of events occurring in plant, and served as elec-
tion observer for the union, not agent of the union); United
Builders Supply Co., 287 NLRB 1364, 1365 (1988) (employee
who solicited and obtained signatures on authorization cards,
set up union meetings and informed employees of meetings,
and served as election observer for union, not agent of the un-
ion); Mike Yurosek & Sons, 225 NLRB 148, 149–150 (1976)
(fact that employees served on in-plant organizing committee
or as election observers did not make them agents of the union),
enfd. 597 F.2d 661 (9th Cir. 1979), cert. denied 444 U.S. 839
(1979). I therefore find that Pease was not an agent of the Peti-
tioner or Joint-Petitioners.
Findings on Objections 1 and 2. Conduct not attributable to
either party may be grounds for setting an election aside. How-
ever, the Board “accords less weight to such conduct than to
conduct of the parties.” Orleans Mfg. Co., 120 NLRB 630, 633
(1958). Third-party conduct will be grounds for setting an elec-
tion aside when “the conduct was so aggravated as to create a
general atmosphere of fear and reprisal rendering a free election
impossible.” Westwood Horizons Hotel, 270 NLRB 802, 803
(1984). Accord: Picoma Industries, 296 NLRB 498, 498
(1989). In assessing alleged threats under the third-party con-
duct standard, the Board examines (1) the cumulative effect of
the threats; (2) whether the threats were directed at all employ-
ees in the bargaining unit; (3) whether the persons making the
threats are capable of carrying out the threats; (4) the degree to
which the threats were disseminated; and (5) whether the
threats were made in close proximity to the date of the election.
See Picoma Industries, Inc., 296 NLRB 498, 498–499 (1989);
Hamilton Label Service, 243 NLRB 598, 598–599 (1979);
Westside Hospital, 218 NLRB 96, 96 (1975).
It is well established that “the subjective reactions of em-
ployees are irrelevant to the question of whether there was, in
fact, objectionable conduct.” Emerson Electric Co., 247 NLRB
1365, 1370 (1980), enfd. 649 F.2d 589 (8th Cir. 1981). Thus,
the Board determines “whether it is likely that the employees
acted in fear of [a third party’s] capability of carrying out the
threat.” Westwood Horizons Hotel, 270 NLRB 802, 803 (1984).
Credited testimony discussed above shows that Pease threat-
ened some fellow employees with physical harm shortly before
the election. Threats were made to Ramos and McCoy just 1 to
3 days prior to the election. The threats of physical harm to
McCoy which took place 2 or 3 days before the election were
heard by four or five other employees. See Picoma Industries,
supra, 296 NLRB at 499 (while threats were not disseminated
by the employee to whom they were made, they were made in
presence of other employees). While no one seemed to take
Covarrubias’ complaints about Pease seriously at the union
meeting because of the condition she was in, employees ap-
proached her later about what she said and she then had discus-
sions with about seven other employees.
I find that threats made to other employees by Pease, some
of which took place shortly before the election, one of which
was witnessed by other employees, and some of which were
disseminated to other employees, created a general atmosphere
of fear and reprisal necessitating a second election in both
Cases 32–RC–4443 and 32–RC–4448 and Case 32–RC–4449.
See Smithers Tire & Automotive Testing of Texas, 308 NLRB
72, 72–73 (1992); Buedel Food Products Co., 300 NLRB 638,
638 (1990); Sequatchie Valley Coal Corp., 281 NLRB 726, 726
(1986). Of particular concern is the number of employees who
learned of the threats and the vote margins in the two elections.
See Picoma Industries, supra, 296 NLRB at 500; RJR Archer,
Inc., 274 NLRB 335, 336 (1985).
RECOMMENDATION
For the reasons stated above, I recommend that the chal-
lenges filed in Cases 32–RC–4443 and 32–RC–4448 to the
ANTIOCH ROCK & READY MIX 1099
ballots of Bailey and Cast be overruled, and that should a rerun
election be ordered by the Board, those employees be found
eligible to vote in the rerun election.
I recommend that Objections 1 and 2 be sustained, that the
elections conducted on June 11, 1998, be set aside, and that
new elections be directed.15

15 Within 14 days from issuance of this report, any party may file
with the Board in Washington, D.C. exceptions to the report with sup-
porting brief, if desired. Immediately upon the filing of such excep-
tions, the filing party shall serve a copy thereof, together with a copy of
any brief filed, on the other parties. A statement of service to the Board
shall be made to the Board simultaneously with the filing of exceptions.
If no exceptions are filed to this Report, the Board may decide the
matter forthwith upon the record or make other disposition of the case.