United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3927

___________

Deffenbaugh Industries, Inc., *

*

Petitioner, *

* Petition for Review of the 

v. * Decision and Order of the

* National Labor Relations Board.

National Labor Relations Board, *

*

Respondent, *

*

General Drivers & Helpers Union, *

Local No. 554 Affiliated with *

International Brotherhood of Teamsters, *

Chauffers, Warehousemen and Helpers *

of America, AFL-CIO, *

*

Intervenor on Appeal. *

___________

No. 96-4160

___________

Deffenbaugh Industries, Inc., *

*

Respondent, *

* Cross-Application for Enforcement

v. * of an Order of the National Labor

* Relations Board.

National Labor Relations Board, *

*

Petitioner, *

*
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General Drivers & Helpers Union, *

Local No. 54 Affiliated with *

International Brotherhood of *

Teamsters, Chauffeurs, Warehousemen *

and Helpers of America, AFL-CIO, *

*

Intervenor on Appeal. *

___________

Submitted: May 21, 1997

Filed: August 11, 1997

___________

Before MURPHY, HEANEY, and MAGILL, Circuit Judges.

___________

MURPHY, Circuit Judge.

The National Labor Relations Board found that Deffenbaugh Industries, Inc. had

committed unfair labor practices by refusing to bargain with and furnish relevant

information to the General Drivers & Helpers Union, Local No. 554, the collective

bargaining representative of some of its employees. After the board issued an order

requiring Deffenbaugh to bargain with the union, provide it necessary information, and

post a notice to that effect, Deffenbaugh petitioned for review, requesting that the

board's order be completely set aside. The board in turn filed a cross-application

seeking enforcement of its order. We deny the petition and grant enforcement of the

board's order.

Deffenbaugh operates a trash and waste collection and removal business in

Omaha, Nebraska. A petition requesting a union representation election was filed with

the board by the union in October 1995, and a secret-ballot election was held on

November 30, 1995. Of the approximately 134 employees eligible to vote, fifty-eight
Villa also reported that Anthony Horton, an employee who supported the union, 1

went to his home and threatened him in English with deportation if he did not vote for

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voted in favor of representation and fifty voted against it, with one void ballot and two

challenged ballots that would not have affected the outcome of the election. Deffenbaugh

contested the results of the election, charging among other things that it had been influenced

by threats of physical harm and the possible arrival of the Immigration and Naturalization

Service (INS). The board scheduled a representation proceeding at which Deffenbaugh's

challenges to the election were considered.

The evidence presented at the proceeding showed that statements had been made to a few

Hispanic employees at Deffenbaugh that the union might "bring in" the INS if it lost the

election and that rumors about this possibility had circulated among Hispanic employees.

There was no evidence that the union made any of the statements or started the rumors, and

there was no evidence of any physical threats or vandalism in the pre-election period or that

the INS ever visited the company before the election. O n e

Deffenbaugh employee who worked as a helper, Ignacio Resendiz, testified that the driver

of a truck in which he had been riding over a month before the election had told him about

the benefits of the union and the possibility that the INS might arrive at the company if the

union were to lose the election. Resendiz identified the driver only as "Mike" and said Mike

had neither held himself out as a union representative nor said that he spoke for it. Resendiz

did not report the statement to Deffenbaugh management or his supervisors and only told one

other employee about it. 

Other employees reported hearing statements from unidentified sources about the election.

Miguel Villa, who was ineligible to vote, reported that an unidentified "American" employee

had told him Hispanics should vote for the union because they would get more benefits and

that the INS would be "brought in" if the union lost. Villa 1
it. Horton denied threatening Villa, and Villa did not relay this threat to any other

employee at Deffenbaugh. The hearing officer did not credit Villa's testimony, and

Deffenbaugh has not challenged her credibility determination. She indicated that she

had considered Villa's ineligibility to vote in the election, his apparent difficulty in

understanding English, and inconsistencies and contradictions in his testimony. Such

a determination is entitled to deference unless it is shocking to the conscience which

this is not. See York Prods., Inc. v. NLRB, 881 F.2d 542, 544 (8th Cir. 1989).

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also stated that another employee had told him about hearing a similar rumor, but he

did not tell anyone else about these statements. Domingo Diaz, who was an eligible

voter, was told by an unidentified black driver sometime in October that if the union

lost, "there would be the possibility they would bring in the Immigration." Diaz told

two or three other employees about this statement. 

Several Hispanic employees heard rumors before the election that the INS might

be called if the union lost, but they testified that they did not know the source of the

rumors. A few employees said that there were many discussions about the rumors

among the Hispanic employees and that they participated in some of the discussions.

In contrast, Diaz testified that the discussions about the rumors were not frequent, and

both he and Villa said that they did not participate in them. 

There was also conflicting evidence over the reaction of the Hispanic employees

to the rumors. Some employees reported that a few Hispanic employees appeared

concerned, and Villa said he heard that two Hispanic employees might change their

votes because of the rumors. Others testified that the rumors did not concern them and

that they and others did not have problems with "Immigration." Resendiz said the

rumor he had heard was that Villa and his family would be turned in to the INS if the

union lost, but that the rumor did not concern him. No employee asked the union about

the rumors or statements, and the evidence indicated the union was not aware of them.

There also was no approach to Deffenbaugh management or supervisors about the

rumors and statements before the election.
The board's certification of the union is not subject to direct judicial review, but 2

an employer can assert its objections to the certification as a defense in an unfair labor

practice proceeding over which the federal courts have jurisdiction. Rosewood Care

Ctr., Inc. v. NLRB, 83 F.3d 1028, 1031 n.1 (8th Cir. 1996)

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The hearing officer found that there had not been a coercive or intimidating

atmosphere which interfered with the employees' free choice. She found that there

were no incidents of vandalism or threats of physical violence before the election and

that the statements and rumors were not made by union representatives or agents and

therefore should be examined under the third party standard in Westwood Horizons

Hotel, 270 N.L.R.B. 802 (1984). She determined that the statement made to Resendiz

was only the repetition of hearsay and speculation and that the other anonymous

statements and rumors were disseminated without accreditation to any individual or the

union and that this characteristic made them less coercive. She found that they "[did]

not create an atmosphere of fear and coercion among the employees" and

recommended that the union be certified. 

The board adopted the hearing officer's findings and recommendations because

the statements had not been made close in time to the election or widely disseminated

or rejuvenated before the election and the seriousness of the threats and rumors was

less than in cases setting aside elections. The board certified the union, but

Deffenbaugh refused to bargain with it or to provide it requested information for

collective bargaining.

The board's general counsel then issued an unfair labor practice complaint,

alleging that Deffenbaugh's refusal to bargain or to provide requested relevant

bargaining information violated sections 8(a)(1) and (a)(5) of the National Labor

Relations Act, 29 U.S.C. §§ 158(a)(1) and (a)(5). Deffenbaugh admitted the factual

allegations, but asserted that it had not violated the Act because the union's certification

was not valid. The general counsel moved for summary judgment, and the board

2

granted it, finding that Deffenbaugh had raised no new evidence or special 
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circumstances requiring reexamination of the certification and that all of the

certification issues had been or could have been litigated in the representation

proceeding on the election. The board issued an order directing Deffenbaugh to cease

refusing to bargain with the union, to furnish necessary and relevant information, to

bargain upon request, and to post a remedial notice.

Deffenbaugh now petitions this court to set aside the board's unfair labor practice

decision and order. Deffenbaugh does not contest the factual findings of the board,

including those related to credibility, or argue that the remedy the board ordered was

outside its discretion, but contends that the union should not have been certified

because third party threats interfered with the election so that the result does not reflect

the employees' free choice. It asserts that this situation fits the factors in Westwood for

setting aside a representation election and is similar to the misconduct in Crown Coach

Corp., 284 N.L.R.B. 1010 (1987). Deffenbaugh claims the threats here were serious,

widely disseminated, and rejuvenated near election day. These facts, together with the

closeness of the election, should lead the court to set aside the board's decision and

order and direct the board on remand to conduct a new election. 

The board responds that it found on the evidence that there was no atmosphere

of fear or intimidation and no reason to set aside the election and that these findings are

supported by substantial evidence. The intervening union argues it would be unfair to

hold it responsible for unaccredited and anonymous statements and rumors; such

testimony should not be credited simply because it was unrebutted since it is impossible

to rebut statements from anonymous individuals. The union asserts there is substantial

evidence in the record supporting the board's findings that only third parties were

involved and that the union was unaware of the statements and rumors. There is

a strong presumption that an election conducted by the board reflects the employees'

true desires regarding representation. NLRB v. Hood Furniture Mfg. Co., 941 F.2d

325, 328 (5th Cir. 1991) (citations omitted). "Representation elections are not to be

set aside lightly." Millard Processing Servs., Inc. v. NLRB, 2 F.3d 258, 
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261 (8th Cir. 1993) (citing Beaird-Poulan Div., Emerson Elec. Co. v. NLRB, 649 F.2d

589, 592 (8th Cir. 1981)). A party challenging an election carries the heavy burden of

proving there were improprieties which interfered with the employees' free choice to

such an extent that they materially affected the outcome of the election. NLRB v.

Mattison Mach. Works, 365 U.S. 123, 123-24 (1961) (per curiam); Millard, 2 F.3d at

261 (quoting Beaird-Poulan, 649 F.2d at 592). 

Congress has designated the board as the expert in representation matters, and

in reviewing the board's certification determination, we consider whether it "reasonably

exercised the 'wide degree of discretion' vested in it by Congress." NLRB v. Monark

Boat Co., 800 F.2d 191, 193 (8th Cir. 1986) (quoting Beaird-Poulan, 649 F.2d at 592).

An order of the board will be enforced if it correctly applied the law and if substantial

evidence in the record supports its findings. Millard, 2 F.3d at 262 (quotation and

citations omitted).

It is recognized that a "certain measure of bad feeling and even hostile behavior

is probably inevitable in any hotly contested election," and an election will not be set

aside because of third party misconduct unless it is shown that free choice was vitiated.

Nabisco, Inc. v. NLRB, 738 F.2d 955, 957 (8th Cir. 1984). The challenging party must

prove that the misconduct created "an atmosphere of fear and reprisal such as to render

a free expression of choice impossible." Monark Boat Co., 713 F.2d 355, 360 (8th Cir.

1983) (citations omitted); see also Westwood, 270 N.L.R.B. 802, Less weight is given

to third party misconduct than to party misconduct because unions and employers

cannot prevent misdeeds by persons over whom they have no control, Millard, 2 F.3d

at 261 (citations omitted), and conduct which is not attributed to the union or employer

is less likely to affect the outcome of an election. See NLRB v. Mike Yurosek & Sons,

Inc., 597 F.2d 661, 663 (9th Cir. 1979) (citation omitted). Third party threats and

rumors of deportation do not necessarily invalidate an election. See NLRB v. Eskimo

Radiator Mfg. Co., 688 F.2d 1315, 1319 (9th Cir. 1982) (per curiam) (citations

omitted); Q.B. Rebuilders, Inc., 312 N.L.R.B. 1141 (1993).
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There are a number of factors the board should consider when deciding whether

an election should be set aside because of third party misconduct: the seriousness of

the threats, including whether they encompassed the entire bargaining unit and were

widely disseminated; whether the people making the threats were capable of carrying

them out; whether it is likely employees acted in fear; and whether the threats were

rejuvenated at or near the time of the election. Westwood, 270 N.L.R.B. 802. The

closeness of the election may also be considered, but it is not the determining factor.

Eskimo Radiator, 688 F.2d at 1317, 1319-20 (closeness of election is one factor in

scrutinizing pre-election conduct but "not the controlling factor"; upholding seventythree to seventy vote in favor of representation after finding rumors of deportation did

not create atmosphere of fear and coercion); Rosewood Care Ctr., 83 F.3d 1028, 1032

(upholding twenty-six to twenty-four vote in favor of representation after determining

that threats made to one eligible voter and one noneligible voter did not create

atmosphere of fear and coercion); see also Crown Coach, 284 N.L.R.B. 1010 (election

set aside because of threats and vandalism during campaign even though there was a

wide margin in voting; 411 employees in favor of representation and 280 against).

This case is very different from Crown Coach on which Deffenbaugh relies. In

that case there was an environment permeated with vandalism and threats of

deportation and violence, all aimed at a large proportion of the voting unit. Many

prounion employees repeatedly made threats of deportation to Hispanic employees,

who made up over sixty-five percent of the workforce. There were also numerous

threats of physical injury and acts of vandalism throughout the pre-election period and

on election day, and the threats were widely repeated among the employees. Rumors

about what the union might do if it lost the election were so pervasive there that a group

of twenty to thirty employees had approached Crown Coach management with their

concerns. 

A careful review of the record shows that Deffenbaugh did not meet its burden

of proving that what occurred in this election made an expression of free choice 
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impossible. Deffenbaugh has not shown that the election environment was infused with

coercion and intimidation. The board found, and Deffenbaugh does not contest, that

there were no threats of physical violence and no vandalism or harassment in the preelection period. Some statements about the INS were made, but far from the election

date and not widely disseminated. Less weight is given to the impact of such

statements. Westwood, 270 N.L.R.B. 802. The union was not responsible for the

statements, did not control the people who made them, and was not aware they had

been made. The two statements to eligible voters occurred over a month before the

election, were repeated to only a few other employees, and were made while

employees discussed the union and its benefits. See Nabisco, 738 F.2d at 957. The

one other mention of the INS could not have affected the election since it was made to

an employee who was not an eligible voter and did not tell anyone about it.

Most of Deffenbaugh's objections to the election relate to the unaccredited and

anonymous rumors which circulated among the Hispanic employees, but it has not

shown that because of these rumors free choice was impossible. The union was not

responsible for the rumors, did not control the people who started and repeated them,

and was not aware of their circulation. The rumors concerned approximately fifteen

percent of the electorate, but there was conflicting evidence over the amount of concern

they caused. Several Hispanic employees testified that the rumors did not concern

them and that they did not know the source of the rumors, and none of the Hispanic

employees approached the union or Deffenbaugh management with any concerns about

them. The INS did not visit Deffenbaugh during the pre-election period. Cf. Q.B.

Rebuilders, 312 N.L.R.B. 1141. These unattributed rumors that the employees

recognized were anonymous and unaccredited did not rejuvenate the isolated threats

made over a month before the election. See Mike Yurosek, 597 F.2d at 663.

Moreover, the results of the election were not extremely close since the vote was fiftyeight in favor of representation to fifty against. Deffenbaugh did not meet its burden

of proving that the expression of free choice in this election was not possible.
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It was for the board to make credibility determinations and to weigh the evidence

in reviewing the election, York Prods., 881 F.2d at 544, 546 (quotation and citation

omitted), and its order should be enforced if its findings are supported by substantial

evidence and it correctly applied the law. NLRB v. Earle Inds., Inc., 999 F.2d 1268,

1272 (8th Cir. 1993). The board's findings here are supported by substantial evidence,

and it did not err in concluding that the isolated misconduct and rumors in this

otherwise clean election did not require the election to be set aside. Since Deffenbaugh

has not shown the union should not have been certified and it admitted it refused to

bargain with it and provide relevant information, the petition for review must be denied.

The remedy the board fashioned is not outside its discretion, see Millard, 2 F.3d at 261,

and the board is therefore entitled to enforcement of its order. Earle Inds., 999 F.2d at

1272. 

For these reasons we deny the petition and grant enforcement of the board's

order. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.