National Brands Of Ft. Lauderdale, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1985

277 N.L.R.B. 935 (N.L.R.B. 1985)

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