The Coca-Cola/Dr. Pepper Bottling Co.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 444 (N.L.R.B. 1984)

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Coca-Cola/Dr. Pepper Bottling Company of
Memphis and Jerry Valentine, Petitioner and
International Brotherhood of ;teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local Union 1196, Union. Case 26-RD-532
14 December 1984
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
The National Labor Relations Board, by a three.-
member panel ' has considered objections and deter-
minative challenges' to an election held on 28 May
1982 and [pertinent portions of] the attached hear-
ing officer's report recommending disposition of
them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
showed 203 for and 165 against the Union with 41
challenged ballots, including 3 ballots which had
been declared void and challenged at the count.
The challenged ballots were sufficient in number to
affect the results.
The BOard has reviewed the record in light of
the exceptions' , and briefs and has adopted the
' The Employer has excepted to some of the hearing officer's credibil-
ity findings The Board's established policy is not to overrule a hearing
officer's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are'incorrect Stretch-Tex Co;
118 NLRB 1359, 1361 (1957) We find no basis for reversing the findings
2 In her report, the hearing officer relies on Hollywood Ceramics Co,
140 NLRB 221 (1962), and General Knit of California, 239 NLRB 619
(1978), to support her recomendation that the Employer's objections that
allege the Petitioner made material misrepresentations warranting setting
aside the election are without merit
In Midland Life Insurance Co, 263 NLRB 127 (1982), the Board ruled
that it will no longer probe into the truth or falsity of the parties' cam-
paign statements, and that elections will no longer be set aside on the
basis of misleading campaign statements We rely on that case in finding
that these objections concerning misrepresentations are without merit
In its exceptions the Employer contends that the Union made certain
misrepresentations concerning 119 strikers and the- manner of reinstate-
ment of the strikers, which constituted an abuse of the Board's processes
The Employer would have us apply the standards in Formco, Inc , 233
NLRB 61 (1977), to these allegations However, the Board overruled
Forme°, Inc in Riveredge Hospital, 264 NLRB 1094 (1982), holding that
alleged misrepresentations of the Board's processes will be treated the
same as all other alleged misrepresentations ,
Applying the principles enunciated in Riveredge Hospital, we adopt the
hearing officer' i recommendation to overrule this allegation of objection-
, -.able conduct .
In finding no merit to the Employer's allegation that -the Union en-
gaged in objectionable activity by threatening employees with physical
violence if they did not join, support, or select the Union as their bar-
gaining representative, we do not rely on Hickory Springs Mfg Co, 239
NLRB 641 (1979) (or its progeny), which has been overruled in Home &
Industrial Disposal Service, 266 NLRB 100 (1983)
In adopting the hearing officer's finding that alleged threats made to
employees Valentine and Gilley did not warrant setting aside the elec-
tion, we do not rely on the hearing officer's statement that the threats did
not deter Valentine and Gilley from their efforts to campaign against the
Union As the hearing officer correctly stated, the proper test for evaluat-
ing such conduct is an objective one whether the conduct involved was
"likely to coerce prospective voters to cast their ballot in a particular
manner" Great Atlantic Tea Co, 177 NLRB 942 (1969)
hearing officer's findings 2 and recommendations,3
as modified.4
We agree with the hearing officer that the cam-.
paign here was not designed to inflame racial
hatred or to engender- conflict between black and
white workers. Rather, the comments were obvi-
ously designed to express the view that blacks had
not been treated fairly by their employer and that
they needed to Join , forces to do something about
it. Unlike the situation in Sewell Mfg. Co., 138
NLRB 66 (1962), which involved the exacerbation
of racial prejudices and tensions without regard to
an employment relationship, the remarks were di-
rected to the black employees' perceived relation-
ship with their employer as employees and their
dissatisfaction with the terms and conditions of em-
ployment. In that regard, the comments are similar
to other types of campaign assertions relating to an
employer's treatment of its employees.
In the instant case, union representative Sidney
Chism's stating to employee Henry Gilley, that the
Company had kept blacks down for a long time
and now they had a chance to take care of it, rep-
resents nothing more than a view that the black
employees had been mistreated in their employ-
merit . with this employer—a legitimate issue, for dis-
cussion during a union campaign. References to
"plantation" and "Martin Luther King" simply Put
these matters in a historical setting well understood
by all,- blacks in particular. Chism's telling an em-
ployee either that material being handed out was
white man's material or that the distributor was
just a-white man doing white man's work indicates, •
Finally, in dismissing the Petitioner's Objection 2 and the Employer's
Objection 3, the hearing officer, inter aim, found none of the alleged inci-
dents described by.Sammy Davis Jr in his testimony objectionable We
adopt these findings solely on the ground that Davis' testimony was not
credited Accordingly, we find It unnecessary to pass on the remainder of
the hearing officer's rationale for finding that the incidents involving
Davis did not constitute objectionable conduct .
3 In the absence of-exceptions thereto, we adopt, pro forma, the hear-
ing officer's recommendation that (1) the challenge to the Board agent's
ruling that the ballot identified at the hearing as R D Exh 3(b) be over-
ruled and that said ballot be declared void, (2) the challenge to the Board
agent's ruling that the ballot identified at the heanng as R D Exh 3(d), a
mall-in ballot, be sustained and that said ballot be counted consistent with
the procedure adopted for all other mail-in ballots, (3) the challenges to
the ballots of Alexander Cannon, Paul Turner, Bryant Randolph, and
Housion Bramlett be oveiruled, and (4) -since no determination can be ".
made as to the validity of Gregory E Blake's challenged ballot, in the
event Blake's challenged ballot becomes determinative of the results, the
election be set aside and a new election held
4 Thirty-three Of the forty-one challenged ballots- were cast by unfair
labor practice strikers whose reinstatement nghts were determined by the
Board in Case 26-CA-4991, et al (269 NLRB 1101 (1984)) -As the Board
in that decision found that Only six of these strikers were unlawfully
denied reinstatement by the Employer, the challenged ballots cast by eli-
gible voters are no longer sufficient in number to affect the election re-
sults Accordingly, there being no need to open and count any of the
overruled challenged ballots or take further Into account the challenged
ballot of Gregory E Blake, we shall issue a certification of representative
to the Union
273 NLRB No. 68
COCA-COLA BOTTLING CO

445
a distrust of the motives of the distributing employ-
ee because of a perceived advantage resulting from
his race.
Again, such comments represent the view that
black employees have not been fairly treated be-
cause of their race. Whether this view is accurate
with respect to a particular employer, thereby
making it a "legitimate campaign issue" in our dis-
senting colleague's words, is of little consequence.
The right to raise the issue in a union campaign
is not limited to situations where a white employer,
or even the NLRB, believes that blacks have been
unfairly treated. Nor is it any more necessary for
blacks to establish the truth of the claim before
they raise the issue than it is for any other employ-
ees to establish the truth of their claims of unfair
treatment, for any reason, at the hands of their em-
ployers. The question of whether employees have
been unfairly treated, for whatever reason, is
always a legitimate topic of discussion in a union
campaign.
This is not to say - that all racial remarks involv-
ing the employer-employee relationship will be tol-
erated. But unless such racial remarks rise to the
level that they are so inflammatory as to make a
fair election impossible, we will not find them ob-
jectionable. Here the racial appeals do not rise to
that level. We therefore overrule these objections.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots has been cast for International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Union 1196 and that it is the ex-
clusive collective-bargaining representative of the
employees in the following appropriate unit:
All production and maintenance employees at
the Employer's plant located at 499 South
Hollywood Street, Memphis, Tennessee, in-
cluding route merchandisers, delivery drivers,
helpers, pre-mix, advertising, garage, cooler
and forklift drivers. Excluded: All account
representatives (tel-sel, advance salesmen and
sales merchandisers), clerical employees,
guards, professional and technical employees,
and supervisors as defined in the Act.
MEMBER HUNTER, dissenting.
Contrary to my colleagues, I would find that the
Union destroyed the election's laboratory condi-
tions by making irrelevant, inflammatory appeals to
racial prejudice.
The hearing officer found that, during a union
meeting 3 days before the election, union represent-
ative Chism told approximately 75 assembled em-
ployees that the Employer's president Pidgeon ran
his business like a "plantation." During the cam-
paign the Union also distributed a leaflet to em-
ployees which stated: "If. you believe that it's time
to get off Pidgeon's plantation—Then Vote Yes."
The Union also distributed an additional leaflet
which included the following statement: "Tell the
folks Pidgeon wants . everyone back on his planta-
tion with you as overseer."
The record further establishes that, 3 weeks
before the election, Chism told antiunion employee
Gilley that the Employer "had kept the blacks
down for so long" that Gilley should not help the
Employer do so, and that the employees now had a
chance to take care of the problem. Two weeks
before the election, antiunion employee Cullen
heard Chism say that Cullen was "just a white man
doing a white man's work," and that the antiunion
literature which Cullen was distributing was
"white man's material."
In YKK (U.S.A.) Inc., 269 NLRB 82 (1984), the
Board reaffirmed the principle of Sewell Mfg. Co.,2
that an election will be set aside where a party
launches a campaign to exacerbate racial feelings
by making irrelevant, inflammatory appeals to
racial prejudice. In my view, the circumstances_
herein are sufficiently analogous to those in YKK
to warrant setting aside the election. In YKK the
Board noted the Union's references to beating the
"Japs" at Pearl Harbor, and emphasized that there
was "no conceivable way" that. such comments
could be relevant to a legitimate campaign issne.3
Similarly, I am unable to discern the connection
between the Union's repeated "plantation" remarks
and the legitimate issues which arose during the
campaign in this case. I also view the Union's ac-
cusations as inflammatory because it is clear that
their purpose was to spotlight the race of the Em-
ployer's president and to exacerbate racial tensions.
The Board in YKK further emphasized that the
union's comments were not isolated since they
were uttered at a meeting before 75-100 employ-
ees. Here, Chism's "plantation" remarks were made
during a meeting of 75 employee' s only 1 days
before the election, and similar statements were
printed on leaflets distributed to an undisclosed
number of employees.
Consequently, I would find that the Union made
irrelevant, inflammatory appeals to racial prejudice.
I would therefore sustain the Petitioner's Objec-
tions 1(a) and 3 and the Employer's Objection 1,
The tally indicated that there were approximately 449 eligible voters
2 138 NLRB 66 (1962)
3 269 NLRB 84
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and I would set aside the election and direct a new
election.4
4 Because I would set aside the election on thii Issue, I find it unneces-
sary to reach the other objection i considered by the hearing officer
APPENDIX
HEARING OFFICER'S REPORT ON
CHALLENGES AND OBJECTIONS
Pursuant to a Stipulation for Certification upon Con-
sent Election approved by the Regional Director for the ,
Twenty-Sixth Region on May 7, 1982, an election was
conducted on May 28, 1982, among certain employees'
of the Employer, at its Memphis, Tennessee, location.
Upon the conclusion 'of the election, a tally of ballots
was furnished the parties in accordance with the Board's
Rules and Regulations. The tally of ballots revealed that
of approximately 449 eligible voters, 203 were cast for
the Union and .165 were cast against the Union. There
were 41 challenged ballots which, are sufficient in _
number to affect the results of the election.
On June 7, 1982, the Petitioner and Employer filed
timely objections to conduct affecting the results of the
election, copies of which were dub, served - upon the
other parties. -The objections of both parties are attached
hereto. . _
On June 9, 1982, , the Regional Director issued his
Notice of Hearing on Challenges and Objections in
which he ordered a hearing to be held on June 29, 1982,
to resolve the issues raised by the 'Challenges 2 and the
Employer's objections. On June 14, 1982, the Employer
filed its motion to postpone Hearing and on June 17,
1982, the Regional Director -issued an Order Reschedul-
ing Hearing to July 6, 1982. •
Pursuant to the Notice of Hearing on Challenges and
Objections, said hearing was held on July 6 and July 7,,
1982, at Memphis, Tennessee,' before the , undersigned
hearing officer, duly designated for that purpose All
parties Were afforded -full opportunity to be heard, to ex-
amine and crogs examine witneses, and to introduce evi-
dence on the issues. My findings are' based upon the
entire testimonial record including exhibits and from my
observation of the witnesses; including but not limited to
their general demeanor as they testified under oath, parti-
•
All production and maintenance employees at the employer's plant
located at 499 South Hollywood Street: Memphis, Tennessee, including
route merchandisers, delivery drivers, helpers, pre-mix, advertising,
garage, cooler and forklift dnvers Excluded All account representatives
(tel-sel, advance salesmen- and sales merchandisers), clencal employees,
guards, professional and technical employees, and supervisors as defined
in the Act
2 The challenges which are the subject of hearing do not Include 33 of
the t41 challenges Thirty-three of the.challenges represent ballots cast by
individuals whose reinstatement rights have been litigated but not re-
solved in Case No. 26-CA-4991, et ill The Board in its Ruling on Ad-
ministrative Action dated Apnl 21, 1982, directed that these persons vote
by challenge Thus, the challenge ballot issues are limited to 8 ballots, 3
ballots declared void and challenged at the count, 4 persons challenged
by the Board because their names did not appear on the list, and 1 indi-
vidual challenged by the Board as the name had already been marked off
the list
san interest, guarded or indirect answers, conclusional
and conflicting testimony, conclusionary statements as
distinguished from fact, argumentativeness, self-serving
answers, power of recall or lack thereof, responses to
leading questions by Counsel, general attitude, memory
for detail, and ability to comprehend the nature of the
questions and answers thereto.
PETITIONER
OBJECTION NUMBER ONE
From approximately May 4, 1982, until a day before
the election, the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local Union 1196 (hereinafter referred to as the Union)
passed out objectionable campaign propaganda to em-
ployees. The various union handbills were all designed to
create and foster several false impressions, including: .
(a) the idea that the Company owner and his staff
were prejudiced against the black employees and would
not treat them , fairly, this impression was fostered
through literature using analogies of the plant as a "plan-
tation," its owner wanting "everyone back on his planta-
tion," and the personnel director being the plantation
"overseer." The literature made further racial pitches by
referring to the employees as "folks," calling the person-
nel director's meetings with employees "captive audience
meetings," making repeated references to company at-
tempts to "keep you back," "hold you down," "keep you
down," "insult you," "keep you under their thumb," and
other racially charged phrases _designed to support the
impression that the Company policy was based on anti-
black sentiments.
PETITIONER OBJECTION NUMBER THREE
At the Union meeting held the Tuesday before the
election, the Union President, Mr Sidney Chism, made
the same racially slanted argument -that was promulgated
by the Union literature, i.e., that the Company owner did
not like blacks, that he would do anything to keep them
in their place, and that he did not want them Working
for him. Mr Chism made the same analogies used in the
Union literature concerning the plant being a plantation
with the Personnel Director being the overseer, etc.
EMPLOYER OBJECTION ONE
The Union, its agents, and others, engaged in a delib-
erate and sustained campaign of appeals to racial emo-
tions and prejudices designed to inflame racial hatred
and to engender a conflict between black and white
workers at the Employer's operations, and also between
black workers and white managers.
DISCUSSION
Petitioner Objections 1(a) and 3 have been joined with
Employer Objection 1 for examination and discussion as
they relate to various allegations of racial appeal Em-
ployee Henry Gilley testified that approximately three
weeks before the election, Union Representative Sidney
COCA-COLA BOTTLING CO. 447
Chism called him over to the fence outside the Employ-
er's facility during lunch time. As Gilley and Chism
walked up the sidewalk, Chism asked Gilley what he had
against the Teamster Union and Gilley responded that he
didn't have anything against them. Gilley testified that
Chism had stated that the company had kept the blacks
down for so long and now they got a chance to take
care of it and don't help keeping them down. Gilley re-
sponded that he was just against the Teamster Union. He
testified that no one else had heard Chism's statements.
Employer/witness Patrick Cullen, who, as well as
Henry Gilley, passed out campaign literature for People
Against Teamsters, herein referred to as P.A.T., testified
concerning one particular day when he handbilled some
two weeks prior to the election. Cullen testified that
Chism, who was handbilling Teamster campaign litera-
ture while Cullen was handbilling P.A T. literature had
told four employees in a car that "there was no reason to
take mine, that they might as well take his because his
was the truth. Mine was a white man's material." When
asked to repeat the conversation in later testimony,
Cullen testified that Chism had said "there is no need to
take his stuff" Cullen further testified that Chism had
followed with a comment that Cullen was just a white
man doing a white man's work. After the employees had
passed in the car, Chism had told Cullen that there was
no offense. There was no one present with Cullen when
this occurred.
Two Employer witnesses testified concerning remarks
made in a union meeting held on May 25, 1982. Employ-
ee Charles Odom testified that during the union meeting,
Chism, in speaking to the approximately 75 persons
present, had said that "if we lose, you lose." Odom also
said that Chism has stated in the meeting that President
Pidgeon runs his plant like a plantation and he has Per-
sonnel Director Donaldson the head of it Odom also de-
scribed the comments of union representative Fiveash
the meeting. Odom testified that Fiveash had used
Martin Luther King as an example and talked on the
issue of blacks going in the back and white in the front.
According to -Odom, Fiveash has also said that "Martin
Luther King had fought for our rights as blacks and we
were about to let it go down the drain" Odom also testi-
fied that Fiveash had said that "Pidgeon was trying to
take „your rights away from you." Odom also talked
about a black union representative who had told the em-
ployees in the union meeting that he had a tape that he
wished that they could hear The tape was described as
having some Coca-Cola supervisors talking about the
employees and using the term plantation
Employer/witness Jeffrey Battle testified that during
the meeting, Chism had said Mr. Pidgeon had wanted
"to get it back the way it used to be and compared that
to a plantation" Battle testified that another unidentified
union representative talked about Martin Luther King
and discussed that King had come to Memphis to help
the trashmen get better jobs and better benefits.
Battle confirmed on cross-examination that he did not
think of Dr. King as a racist. He said that when someone
mentions Dr. King, he has an image of a good man
trying to do right. On cross-examination, Odom testified
that when he heard Dr. King's name, he thinks about
black against white and Dr King's name means blacks
speaking up for themselves without violence.
The Union distributed 11 pieces of literature to em-
ployees during the election campaign. In union handbill
Judgment Day (Employer Exhibit 1(c)) there is one line
which contains the words "If you believe that it's time to
get off Pidgeon's Plantation—Then Vote Yes." In the
union handbill entitled Pidgeon 'S Pigeon Grounded. (Em-
ployer Exhibit 1(h)), the Union ends a six paragraph
statement with the words "Tell the folks Pidgeon wants
everyone back on his plantation with you as overseer"
The Board has held privileged campaigns which con-
sisted of racial propaganda designed to encourage racial
pride and concerted action. 5 While in the present case,
there are clearly references to racial pride, the evidence
does not reflect that the Union's campaign was designed
solely to inflame racial hatred and to engender a conflict
between black and white workers 6 Racial comments in
the Union's literature and the Union meeting do not es-
tablish that the Union's campaign was a racially oriented
campaign deliberately seeking to invoke the hatred of
black employees for white people. 7 Additionally, I find
that Chism's individual comments to potentially six
voters 5 out of some approximately 449 eligible voters
would not support Employer's contention that the Union
engaged in a deliberate and sustained campaign of ap-
peals to racial emotions and prejudices. Accordingly, I
recommend that Petitioner's Objections 1(a) and 3, and
Employer's Objection 1 be overruled.
. . . .
EMPLOYER OBJECTION SEVEN
The Union, its agents, and others, made material mis-
representations at a time which Respondent did not have
an adequate opportunity to respond
Both Petitioner and the Employer allege misrepresen-
tation by the Union in its use of the number of 119 em-
ployees in its handbills and which was introduced into
evidence as Employer's Exhibits 12(a) and 12(1). Petition-
er and Employer assert that the union misrepresented-the
number of strikers who could have been reinstated at the
company and additionally the manner of reinstatement
for those strikes. In Employer Exhibit 12(a) the critical
words are "The facts are the 119 employees of P.A.T.
(Pidgeon Against Teamsters) talks about having charges
filed against the Company and if any of these people win
their case, the Company may put them anywhere they
want to."
In Employer Exhibit 12(1), the significant section deal-
ing with this alleged misrepresentation is "We also want
the 119 employees that Coca-Cola has refused to rehire
to have their jobs back—that's why we appealed the
Baltimore Luggage Go, 1967; 162 NLRB 1230, enforced 4 cif 1967,
387 F 2d 744 Archer Laundry Go, 150 NLRB 1427 (1965)
6 Sewell Mfg Go, 138 NLRB 66 (1962)
Bancroft Mfg Go, Inc , 210 NLRB 1007 (1974) Archer Laundry Co.
supra
8 The record is without any direct evidence that four of these employ-
ees did in fact hear Chism's'comments
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election and because we know this is another J R.
scheme to take your union from you."
Chism testified that during the union meeting held on
May 25, 1982, he talked about the history of Coca-Cola
and the fight that the Union had experienced in organiz-
ing them. He said that in 1975, the company had fired
one of the employees had there had been a strike and 119
people had lost their jobs because of the strike. He testi-
fied that he had told the employees in the meeting that
these strikers had filed charges with the Board, and that
they were still in litigation with these employees and he
did not know their destiny or whether they would come
back to the company.
On cross examination, Chism stated that he had used
119 as the number for his handbill as that was the origi-
nal number of employees discharged after the strike, al-
though he admitted that he might be off five or six
people one way or the other. Chism said that the infor-
mation was gathered for the handbills after the filing of
the decertification petition Chism said that from the time
that the decertification petition was filed until the Union
started handbilling, it was his understanding that there
were 119 charges pending. Chism confirmed that he had
talked with one of the Board Agents of the NLRB who
had told him that there were possibly 90 as some of
these cases had settled and some were still being litigated
and some pending.
On further cross-examination, Chism testified that he
had used the figure 119 because that was the number
who had filed charges in 1976 after the strike. He said
that he had attended a hearing in November, 1981 con-
cerning those strikers but contended that he did not
know the number of employees in that hearing who
were still seeking reinstatement.
Personnel Manager Donaldson testified that he had
represented the company for the hearing held in Novem-
ber 1981 and which dealt with the strikers' reinstatement.
Donaldson testified that at the conclusion of the hearing,
there were 48 strikers' reinstatement rights still in issue.
Donaldson further testified that the Administrative Law
Judge had issued a decision in the case within the last
two week's and the Employer had been ordered to rein-
state five of the strikers Donaldson further testified that
the statement in Employer Exhibit 12(a) is not correct
when it states, "The company may put these 119 em-
ployees 'anywhere they want to." He said that the em-
ployees to whom they would offer reinstatement accord-
ing to the Judge's Order, would be placed in the same
position that they left the company in.
The Petitioner and the Employer would, therefore,
argue that the union has misrepresented the manner of
strikers who could have been reinstated at the company
and they would also contend that the union has misrep-
resented the manner of reinstatement for these strikers.
The dates when Employer's 12(a) and 12(i) were distrib-
uted to employees are not clear to the record but the
record evidence indicates that the distribution occurred
during the campaign period. The Petitioner, however,
distributed a handbill which has been identified as Peti-
tioner 5(a) and which specifically deals with these 119
strikers and their reinstatement rights, and would appear
to be in response to the union handbills on the strikers.
The Petitioner would estimate that the date of the distri-
bution was May 6 or 7 in the a m.
When the Board overruled Shopping Kart Food
Market, Inc.," with its 1978 General Knit of California,
Inc." decision, it returned to the standards set forth in
Hollywood Ceramics 16 One of the important- elements of
the Hollywood Ceramics test is that the misrepresentation
occur "At a time which prevents the other party or par-
ties .from making an effective reply." 17 . In the present
case, one of the parties did, in fact, make a response to
the union's handbills which related to the "119 employ-
ees" and their reinstatement rights. ,I would note, howev-
er, that even though Petitioner addressed . thes'e 119 em-
ployees' rights, there was no attempt to correct the
number from 119 to 48 or any other more accurate
number The Employer, however, apparently made no
attempt to correct any alleged misstatement as to the
number of strikers who could be reinstated. As the Peti-
tioner had an opportunity and did, in fact, make a re-
sponse in its handbill distributed on May 6 or 7, the Em-
ployer could have also have had time to respond accord-
ingly. Additionally, I note that Petitioner's handbill was
distributed some 21 to 22 days before the election, thus,
indicating sufficient time for either the Petitioner or the
Employer -to respond to the alleged misrepresentation.
Accordingly, I recommend that the objections relating to
misrepresentation of the number of strikers for reinstate-
ment and the manner of reinstatement be overruled.
EMPLOYER OBJECTION TWO -
Employees were coerced, restrained and intimidated
by threats of loss of jobs if they did not join, support or
otherwise select the Union as their bargaining representa-
tive.
DISCUSSION
Employer presented no direct evidence concerning
this objection. A review of the union literature which
was presented into evidence by the Employer has been
made. The Union makes reference in two handbills to
subjects which could possibW be construed as pertaining
to job availability and changes in the present work force.
In Employer 12(a), the Union mentions the 119 . employ-
ees who have filed charges against the company and
states that- if they' win their case, the company may put
them anywhere they want to. This same phrase . is also
dealt with the discussion of an alleged misrepresentation.
For purposes of this objection, however, I have limited
my discussion to the phrase as it relates to a threat of job
loss. Additionally, the Union makes reference to these
119 employees in Employer 12(i) and states "We also
want the 119 employees that Coca-Cola has refused to
rehire to have their jobs back—that's why we appealed
the eleetion and because we .know this is another J.R.
scheme to take your union from you."
14 Shopping Kart Food Market, Inc. 228 NLRB 1311 (1977)
15 General Knit of California, Inc supra
16 Hollywood Ceramic Company, Inc supra
" Lipman Motors, Inc v NLRB, 451 F 2d 823, 78 LRRM 2808 (2d
Cu 197,1)
- COCA-COLA BOTTLING CO 449
A review of the Petitioner's campaign handbills re-
flects that in its handbill Identified as Petitioner Exhibit
5(a) and which was distributed on May , 6 or May 7,
1982, the Petitioner specifically addresses any job threat
associated with these 119 employees who have been dis-
placed because of the strike. In response to the above-
cited union statement in the handbill, employer 12(i), the
Petitioner replies,
THEIR JOBS?? WHAT DOES "CHISM"
MEAN BY THEIR JOBS?
WE DON'T SEE ANY 119 VACANT JOBS
AROUND HERE. IN FACT, WE DON'T SEE
ANY VACANT JOBS.
WHAT "CHISM" REALLY MEANS IS
THAT HE WANT 119 PEOPLE WHO NEVER
GOT BACK TO WORK AFTER HIS STRIKE
TO COME IN HERE AND TAKE OUR JOBS!!!
THIS IS ANOTHER ONE OF SIDNEY'S CHI-
SELS.
HE TAKES AND USES OUR DUES MONEY
AND USES IT TO HIRE LAWYERS TO TRY
TO GET HIS BUDDIES BACK IN AND 119 OF
US OUT!!
The Petitioner's handbill further asks of the union the
legal requirement of the Company to keep employees
presently working at the plant if the 119 employees get
back and also asks if the union will guarantee that none
of the present employees will be fired if the union suc-
ceeds in getting the 119 employees back in.
In response to the Petitioner's handbill cited above, the
Employer distributed a handbill dated May 11, 1982, and
introduced into evidence as Employer Exhibit 18(d). In
that handbill, the Employer confirms that the Company
has stopped taking applications and that there is a freeze
on hiring. The Employer clarifies that since January 1,
the Company has cut 22 jobs and that sales are down
nearly 5 percent this year. The Employer further tells its
employees that "This means you and your company need
to work together better than ever before to protect your job
security.
. The Union clearly expresses its intent for the return of
the strikers to the work force and through its literature it
has provided the vehicle for inferences to be drawn- by
the employees as to the consequences of their return.
The Employer and the Petitioner, however, have by
comparison, gotten to the heart of the matter and clearly
pointed out to the employees the potential for job loss if
the strikers return to the work force. Any threat of job
loss with respect to the returning strikers could just as
easily have come from the campaign of the Petitioner,
with added support of the Employer's campaign litera-
ture, as it could have come from the Union campaign.
Based upon the foregoing, I do not find that the Union
has interfered with the election by threats of job loss
Accordingly, I recommend that Employer's Objection
Two be overruled.
PETITIONER OBJECTION NUMBER TWO
Approximately two weeks before the election, Jerry
Valentine received a phone call at his home. The caller
asked "Are you the one responsible for the Coke elec-
tion?" to which Jerry answered, "I'm one of the ones re-
sponsible," to which the caller. responded, "If this elec-
tion goes against the Teamsters, you'll be sorry." Then
on the Monday or Tuesday before the election when Mr.
Valentine was handing out literature at the plant's north
drive, the Union campaigner standing next to him said
words to the effect that "You'd better give this up or
you're going to get hurt." Other employees, including
Mr. Henry Gilley, were the victims of threats. The ef-
fects of the coercive activity were apparent, for instance,
when one afternoon during the election week at the
south gate of the plant, employees changing shifts re-
fused Mr. Valentine's literature while taking that of the
Union campaigners while the Union campaigners were
present; however, when the Union campaigners left, em-
ployees came back to get Mr. Valentine's literature and
ask him questions.
, EMPLOYER OBJECTION THREE
Employees were coerced, restrained, and intimidated
by threats of physical violence, if they did not join, sup;
port, or otherwise select the Union as their bargaining
representative. -
DISCUSSION
Petitioner Jerry Valentine testified that two to three
weeks before the election, he received an anonymous
telephone call at his house one evening. When Valentine
answered the telephone, he was asked "If I was the one
that had gotten the petition against the Union at Coca-
Cola" Valentine responded by saying that he was one of
a group of people that had circulated the petition. Valen-
tine said that the calling party had then told him "that if
there was an election and it went against the Union that
I could get hurt" Valentine testified that the caller had
then hung up after the comment. Valentine said that the
call occurred about 8 p.m. in the evening. Valentine tes-
tified that he did not immediately tell anyone about this
telephone can. He said that he did tell his attorney,
Frank Cantrell, about the call, but did not tell any other
employees, Personnel Manager Donaldson, or any other
members of the P.A.T. association. Valentine also con-
firmed that after receiving this telephone call, he did not
quit his anti-union campaign.
Employer in its brief contends that Valentine also re-
ceived other threatening telephone calls at his home
where no one said anything at all. I fail to comprehend
the certainty of a threat in these telephone calls as per-
ceived by Employer's counsel when Petitioner s acknowl-
edges that nothing was said.
Petitioner also testified that during the week prior to
the election he was passing out literature at the north en-
trance of the plant. Valentine testified that he was told
by a white man in his early 40's that if he continued his
activity against the union he could get hurt. Valentine
testified that he did not know the man who made the
threat to him but he had seen this same man on two or
three previous occasions passing out literature and talk-
ing to people who were walking into the entrance. Val-
entine testified that this threat was made to him in the
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
morning between 6 .00 and 6:30 Valentine also confirmed
that an unidentified black man was present at the time
that the threat was made.- Valentine said that the two
men- were passing out union literature and were there
distributing their literature when he had arrived that
morning. Valentine also testified that he had been present
passing out his literature for about 15 to 20 minutes
before the threat was made to him. After the threat was
made, Valentine continued to distribute his literature for
another half hour Valentine said that he had five or six
conversations all together with the man who had threat-
ened. him, and in one conversation, the man had told him
that he was retired but Valentine could not recall from
what or where. This particular conversation about the
retirement had occurred some two or three mornings
before the morning of the alleged threat. During these
other conversations with the man, Valentine had been
asked why he had left the union, why he was passing out
literature against the union, and why had he not re-
mained loyal to the union. Valentine admitted that he did
not tell any other employees about this threat but had
told his attorney Cantrell about a week later. Valentine
testified that he had not discontinued his anti-union cam-
Paign after receiving the threat because he was not in-
timidated.
Employer witness Henry Gilley testified that he passed
out campaign literature on behalf of the P.A.T. organiza-
tion and did so some eight to ten times. He said that he
distributed the literature at the north and south gates -of
the plant and in the morning before work and in the
afternoon . after work. Gilley also described two men
who he identified' not to be Coke employees who were
also distributing literature outside the plant.' He described
the men as a big white guy and a short black guy. Gilley
testified that one morning the black had asked his name
and then had said "why don't I come on and get with
them, you know, and leave the white people alone; and
if I didn't, I would get hurt like that." Gilley said that he
had taken this statement as a threat. Gilley affirmed that
no one else had heard this comment by the black guy
and he was unable to give the black man's name Union
Representative ' Sidney Chism testified that no one dis-
tributed_ union literature who ' was not an official of the
local or with another part of the Teamsters Union.
Chism identified those who handbilled for the union as
Larry Doyle, Vice-President; Nathaniel Jackson, Trust-
ee; Tony Civalich, Southern Conference Organizer; Joe
Allgood, Organizer for the International; and Wesley Fi-
veash who is the_ Treasurer of the local union as well as
himself. He clarified that Fiveash, Doyle Civalich, and
Allgood are all white and Jackson is black.
Employer witness Sammy Davis, Jr. testified that on
the day before the election he was threatened, pushed,
and called bad names by another 'employee who was
identified as Arthur Crutcher. Davis said that he was
leaving work and intended to get a handbill from both
Chism and from one of the P.A T. supporters. When
Davis started to get the literature from the P.A.T. hand-
biller, Davis recounts that "Arthur told me to get my
black ass back up there where I was that I didn't need
that P.A.T." Davis contended that Crutcher had started
shoving him and Davis went back into the guard house
to wait for Crutcher to leave. Davis later went back out
to the area of the handbilling and Crutcher had not left.
Davis said that he had asked the white guy who was
passing out union literature to ask Arthur to leave him
alone. Davis' testimony is somewhat confusing in that he
recounts that the white man said something but Davis
does not repeat it at that point in his testimony. Davis
then describes that he began to talk with Chism who was
also handbilling that particular day Chism had talked
with him and had asked Davis why the people believe
that Chism is against the union and asked Davis if there
was anything Chism was doing to make the people be-
lieve that. Chism made a comment about being accused
of what he was not. Chism had also allegedly asked what
was it in him that had the people believe that he was
really working "for the people in the office" and he as-
sured Davis that he was not. On cross-examination,
Davis testified that Crutcher had left Davis alone and
was leaving when Chism had called Davis over to talk
with him. Davis said that when Chism first called him
over, he had not wanted to go because he knew Crutch-
er was still- there Davis then testified that the unidenti-
fied white man who was passing out literature had said
"you had just better go ahead on up there because you
could feel sorry for them and turn a loose the union." He
also admitted that while Chism in handing out handbills
had been facing Crutcher and Davis, they were turned
away from Chism and were not facing Chism. Davis
named three other employees who were present during
his altercation with Crutcher and said that they were
rooting Crutcher on. Chism testified that he had seen
present during the incident with 'Crutcher and Davis. He
said that he had seen Davis and he had thought that the
employees were just jiving and joking because Davis was
dancing around, shadow boxing and the other guys were
hollering and playing with him Chism said that the
entire incident lasted about 10 or 15 minutes He said
that Davis had come over and talked with him and had,
in fact, come over to Chism on three separate times to
talk with Chism as he handbilled. Chism said that Davis
had told him that he (Davis) believed in God and he
didn't need a union in order to take care of his beliefs
because he paid his tithes. Chism said that Davis would
talk with him for a while and then. would run over and
shadow box for a while, but he had not seen anyone
push or shove Davis.
- Chism testified that Tony Civalich had been handbill-
ing with Chism on that day and had been about one or
two feet away from Chism. Chism denied hearing Civa-
lich threaten Davis and recalled that Chism and 'Civalich
had been laughing at the way Davis was acting out on
the lot. Davis had first said that Cruteher probably was
clowning around, then later testified that he thought
Crutcher Was serious because Crutcher knew Davis was
not in the Union.
Davis testified that also on the day before the election,
he had been threatened by union steward Neely Dodson.
Dodson, who was accompanied by another steward
Leland Tatum, had approached Davis outside the plant
premises It was Davis- testimony that Dodson had told
him that if he didn't vote for the union that "he would
COCA-COLA BOTTLING CO 451
be the first black something out of the gate." Davis went
on to say that Dodson had said "if he voted for the
union or didn't vote for the union, either way it goes, he
would be the first black something out of the gate" She-`
had also told Davis that she was going to . bust his head.
Tatum had not said anything but had just laughed. There
was no • evidence 'presented that other employees were
present during this conversation. Davis confirmed that
he is 5'11' tall and he was not sure how tall Ms-Dodson
was. On cross-examination, he was asked if he thought
that Ms. Dodson was going to bust his head and he re-
plied "I never underestimate nobody" The record re-
flects that Ms. Dodson is black ,and I take notice that
Mr. Davis is black
Davis testified that there. was an employee meeting at
the company approximately May 18, 1982. He said that
he spoke up in the meeting and he let the employees
know that he was not for the union. Davis recounted a
conversation which he had with steward Leland Tatum
and employee Floyd Smith ,after this meeting. Davis was
coming ,out of the bathroom and Tatum had said to him
that he could be hurt and Smith had said that he could
wind up with a knife in his back. Davis said that he did
not say anything . but just kept going. There were no
other employees present during this conversation. While
Employer in its brief contends that Tatum had said that
Davis could be hurt because of his statements against the
union, the record does, not reflect that Davis' testimony
included any mention of the union but only the threats of
harm to Davis.
Davis' testimony also included a description of a con-
versation between Davis and the supervisor of the shell
lot, Maurice Alexander. Davis claims that he had gone
out to the shell lot to clean up the lot. It was Davis' tes-
timony that when Alexander had spoke to him he "had
told me just to get my black ass away from there and get
back to them white:son-of-a bitches." Davis did not
reply but Went back into the plant to clean:up. He said
that this conversation had, occurred after he had spoken
uj in the employee meeting. There was no evidence that
the union or the employee meeting was mentioned by
Alexander to Davis Davi said that three or four em-
ployeei working in the lot, had been present during this
comment but he could only remember two names; Willie.
and Frank.
Davis testified that about a week before the election,
he had a conversation with employee Johnny' Guy. This
conversation had occurred at the north end of the plant
and Guy had said "What in the hell is this that I heard
that you stand up in thern people's face?" Guy had also
said "On May 28, if you don't act right, I am going to
kick your black ass." 'Davis had asked if that was a
threat Guy had said "You damn right, and what do you
want to do about it?" Davis' ran. Davis confirmed that
Guy' is black. Davis went on to explain that prior to this
incident, Guy had been "talking about me before my
face to his other friends. They were making games of
me." Davis described these friends as other forklift driv-
ers and said that Guy had' also tried to turn some of
Davis' friends against him, and named Willie Stewart as
one of those friends that Guy had tried to turn against
Davis. Davis had clarified that Guy had not explained to
him what "acting right" meant. Davis said, however,
that in his interpretation, acting right means to vote for
the Union: He said that he was a person who reads
through lines and as Guy was in the union and Davis
was not, this was his impression.
Davis further testified that on the same day that Neely
Dodson had threatened him, employee William Stewart
had threatened that Davis had better keep his mouth
closed or else he was going to bust Davis' head.
Davis continued to testify about' threats made to him
and recounted an incident that occurred after the elec-
tion where eniployee Wesley Faulkner had told Davis
that he had made a complete ass out of himself by
making his speech- in the company meeting. Faulkner
was accompanied by employee Johnny Johnson who
began grabbing and pushing Davis. Johnson talked about
what he was going to do and was "talking about we was
cool, we was friends, we was this, and we was that."
Johnson then thumped a cigarette on him. Davis said
that he reported these incidents to the company and that
certain of these employees named above were called into
the office. Davis said that he knew that they Were be-
cause he heard their names being called over the inter-
com. He said that their names were all called at the same
time and he recalled hearing the names of Johnny John-
son, Johnny Guy, William Stewart, and Arthur Crutcher
being' called into the office. Davis said that he did not
know whether Tatum or Dodson had been called into
the office. He also said that he could not remember the
date when these persons were called to the office and
was not able to recall ,whether this occurred before or
after the election,-
DISCUSSION
Petitioner and Employer present evidence concerning
allegations of 10 threats to employees during the cam-
paign period: Two threats were made to the Petitioner,
one threat to a member of the P.A.T. association and
seven were alleged to have been made to one employee.
For clarity of discussion, I shall address my findings on
the alleged threats in total.
Both . Valentine and Gilley testified that they were
threatened while they [were] handbilled by unidentified
persons who were also händbilling campaign literature.
Chism's testimony that only union representatives and of-
ficials of the local or Teamsters organization handbilled
supports the _conclusion that the unidentified men de-
scribed by Gilley and Valentine may have been Teamster
representatives. Valentine was ,allegedly threatened by a
man with whom he had handbilled and conversed on
five or six occasions. Some two or three mornings before
the alleged threat this same man had been talking with
Valentine 'abolit his retirement. On the day of the alleged
threat, Valentine had been handbilling in this person's
presence for 15 to 20 minutes before the threat occurred
and Valentine testified that he continued to handbill after
the threat and in the presence of this man for another 30
minutes. _Valentine told no other employees about threat
and only told his attorney a week later. Valentine said
that he did not discontinue his anti-union campaign after
the threat' and, in fact; was not intimidated by the threat.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gilley testified that he handbilled some 8 to 10 times
on behalf on the P.A.T organization of which he is a .
member and one of the founders. The threat he alleges
to have been made to him on one of these days of hand-.
billing was not overheard by any other employees. There
is no evidence that Gilley discontinued his handbilling or
his anti-union efforts after the threat was made. Gilley
did, in fact, serve as an observer for the Petitioner in the
election on May 28, 1982.
Assuming that the threats, as alleged by Valentine-and
Gilley, were made by union representatives and assuming
that they were, in fact, made to both Valentine and
Gilley, I do not find that these isolated threats by the
union sufficient to set aside the election. 2 ° Where union
conduct is involved, the Board has cited the test to apply
to be "Conduct upon which an election is set aside must
be found to have affected the outcome of the election,
i.e., likely to coerce prospective voters to cast their
ballot in a particular manner." 21 The record does not
support the conclusion that Valentine and Gilley were
deterred from their efforts to campaign against the union,
much less to alter their support for Petitioner and the
P A.T organization, nor is there evidence that the
threats to Valentine and Gilley were even communicated
to other employees or coerced other employees. The
Employer in its brief cites Con greso De Uniones Industries
De Puerto Rico, 237 NLRB 1406 (1978), for the proposi-
tion that where threats are made by union officials to the
opposition, the election must be set aside. The above
cited case involves a campaign with two opposing labor
organizations identified as the S.I.U. and Congreso. The
circumstances of that particular campaign included the
organizer for the Congreso drove an automobile toward
an S.I.0 supporter and appeared to be attempting to run
down the employee. Threats were made by one organi-
zation against another during an employee gathering of
some 400 employees assembled in front of the plant and
the union. Representatives of one of the labor organiza-
tions on a daily basis told employees as they entered the
plant that they (the union) would break the employees'
face if the other union won the election. Additionally, a
union delegate was blocked by a group of some 30 to 40
employees at the plant entrance during her hinch period
and another group of employees surrounded her car and
began striking it with their fists and yelling "out with the
S.I.U." The group included the organizer of the oppo-
nent union and this attack occurred for some 15 minutes.
I find no difficulty in distinguishing Congreso with the
present situation involving two isolated and unpublished
threats to two P.A.T. supporters and organizers. The'
other threat alleged to have been made to Valentine in-
volved the threat in the anonymous telephone call.
Except in aggravated situations, the Board has applied
the same rationale to anonymous telephone calls as it has
to rank-and-file employees and other persons who are
not parties to the election. 22 The record reflects that
20 NLRB v Bostik Division, USM Corp, 517 F2d 971 (6th Ctr 1975)
21 Professional Research, Inc. d/b/a West Side Hospital, 218 NLRB 96
(1975) Great Atlantic and Pacific Tea Company, Inc. 177 NLRB 942
(1969)
22 Monroe Auto Equipment Co. 186 NLRB 90
only one out of 449 eligible voters received an anony-
mous telephone call. Valentine through his own testimo-
ny confirms that this alleged threat was not communicat-
ed to any other employees or the 'Employer. Valentine
also admitted that he did not stop his anti-union cam,
paign after receiving the•telephone call. The record does -
not support a finding that the anonymous .telephone call
to Valentine "created an atmosphere of fear and reprisal
which rendered a free expression of choice of representa-
tion impossible and thus destroyed the laboratory condi-
tions for the election."
The remaining seven allegations of threat involve but
one. employee, Sammy Davis, Jr. Davis- testified about
two alleged threats made by union stewards, three al-
leged threats by employees, one threat by a supervisor,
and a threat by in unidentified person who may have
been a union representative. Davis contended that on the
day before the election, female steward Neely Dodson
told him that if he voted for the union or if he didn't
vote for the union, either way, he was going to be the
first black something out of the gate. While Dodson's
comment may have been a threat, the very wording
denies that it was made to coerce Davis to vote for the
union. If Davis were to be credited, Dodson was threat-
ening him bu. t letting him know that the' threat stood. no
matter how he voted
Davis also contends that a - Union steward Tatum ac-
companied by employee FlOyd Smith threatened him as
he pagsed them after he exited from the bathroom. Davis
gave no testimony that these threats were prefaced by
any comment or reference to the union election.
Davis also testified about a comment from an unidenti-
fied white man who was passing out literature on the
day before the election. Union representative Chism had
called Davis over to talk with him as Chism was hand-
billing in front of the plant. Davis testified as being hesi-
tant to go because he had just had an altercation with
another employee in the same area. When he hesitated,
the unidentified white man had said, "You had better go
ahead on up there because you cOuld feel sorry for them
and turn a loose the union." By Davis' own testimony,
he describes that he did, in fact, talk with Chism and, in
fact, engaged in a lengthy discussion where Chism asked
Davis about how employees perceived Chism and enlist-
ed Davis' advice about how to convince the employees
of Chism's true interests The conversation as described
by Davis did not have the appearance of a coercive or
intimidating discussion.
While Davis has testified concerning three separate in-
cidents and threats which are alleged to have been made
by union representatives and stewards, I do not find
these threats as a basis for setting aside the election.
The Board has held that statements made to employees
by union representatives which are reasonably calculated
to interfere with the employees' exercise of freedom of
choice exceed the permissible bounds of preelection ac-
tivities. 23 The Board has also, however, agreed with the
Fifth Circuit finding that "For conduct to warrant set-
ting aside an election, not only must that conduct be co-
23 KMS Corporation, 242 NLRB 633 (1979)
COCA-COLA BOTTLING CO

453
ercive, but it must be so related to the election as to
have had a probable effect upon , the employees' aations
at the polls." 24 I do not find that these statements as al-
legedly by Davis rise to the level of interference which
would have have affected the outcome of the election
Additionally, I note that the Board has also held that in
certain circumstances employees hearing such threats
may be more likely to vote against, rather than for, the
Union. 2 5
Davis also testified concerning threats made by em-
ployees Arthur Crutcher, Johnny Guy and William
Stewart There was no evidence presented that any of
these three employees were acting as agents of the union
or at the command or urging of union officials. 26 The
Board has applied a somewhat different standard to con-
duct of employees who are not union representatives and
has looked to whether the character of the conduct was
so aggravated as to create a general atmosphere of fear
and reprisal rendering a free expression of choice of rep-
resentatives impossible. 27 Petitioner in its brief cites
Steak House Meat Company, Inc , 206 NLRB 28 (1973) to
support its contention that the "conduct alleged' had cre-
ated a general atmosphere among the voting employees
and fear of reprisal for failing to vote for or to support
the Union." While it is true that in the Steak House Meat
Company, Inc., the threat was made to only one employ-
ee, I find the circumstances distinguishable to the present
case. In the Steak House case, the employee threatened
was a 16 year old part-time employee who was threat-
ened that he would be killed. I do . not find that the
threats made by Crutcher, Guy or Stewart had the same
coercive effect upon Davis, or rose to the level of confu-
sion and fear of reprisal as cited by the Board in the
Steak House case While Davis describes the comment by
supervisor Alexander as a threat, there was no evidence
that Alexander's comment was directed to the union or
84 NLRB v ZeIrtch Company, 344 F 2d 1011 (CA 5, 1965)
KMS Corporation. supra, Hickory Springs Manufacturing Company,
239 NLRB 641 (1978)
86 Orleans Mfg Co, 120 NLRB 630 (1958), Allied Metal Hose Company,
Inc. 219 NLRB 1135
27 Aladdin Hotel Corp, 229 NLRB 499 (1977)
concerning the union. Davis gave no other testimony
concerning anything which Alexander said to influence
Davis' vote. I do not find that this isolated comment by
Alexander which may have been perceived by Davis as
a pro-union comment to be sufficient to set aside the
election.
In summary, I do not find that the threats as alleged
by Davis created a general atmosphere of fear and con-
fusion nor do I credit in their entirety Davis' versions of
the threats allegedly made -. Petitioner would contend
that due to the fact that there was not rebuttal of all the
threats as alleged by Davis, that an adverse inference
must be drawn, citing Dynacor Plastics and Textiles Divi-
sion of Medline Industrids, Inc., 218 NLRB 1404, 1410-11
(1975). Regardless of Petitioner's contention, however, I
find Davis' testimony is not without ambiguity or incon-
sistency." Based upon his demeanor as a whole, I do
not credit the testimony of Davis.
Petitioner further contends that one clear indication of
the confusion and fear is the allegation that on some oc-
casions when both- Union and non-Union parties were
present and engaged in handbilling, employees would
take the Union literature and then wait until the Union
organizers had left to return and take the non-union liter-
ature. Please see a discussion as to this allegation in this
report as it deals with Employer's Objection Number 8.
On the basis of the foregoing, I do not find that the
incidents as described above created a general atmos-
phere of fear and confusion or interfered with the em-
ployees' actions at the polls and thus I find no basis for
the setting aside of the election. Accordingly, I recom-
mend that Petitioner's Objection Two and Employer's
Objection Number 3 be overruled.
88 I note Davis' testimony of being allegedly coerced by the unidenti-
tifed union representative to talk with ,Chism and the incredibly personal
discussion which Davis alleges to have resulted therefrom Additionally,
I find It incredible that after Davis testified about all the employees who
had threatened him, he recalled that they had been summoned to the
office on the same day but he could not remember whether this occurred
before or after the election These- same employees he had identified as
being called to the office were employees who had allegedly threatened
him both before and after the election, according to his previous testimo-
ny