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, * *-2-

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 relevan t informat ionto the General Drivers & Helpers Union, Local No. 554, the collectiv e bargai ning representative of some of its employees. After the board issued an orde r requiring Deffenbaugh to bargain with the union, provide it necessary information, and po sta notice to that effect, Deffenbaugh petitioned for review, requesting that th e board's order be completely set aside. The board in turn filed a cross-applicatio n seeking enforcement of its order. We deny the petition and grant enforcement of the board's order.

Def fenbaughoperates a trash and waste collection and removal business i n Omaha, Nebraska. A petition requesting a union repres entation election was filed with the board by the union in October 1995, and a secret-ballot election was held o n November 30, 1995. Of

the approximately 134 employees eligible to vote, fifty-eightVilla also reported that Anthony Horton, an employee who supported the union, 1 went to his home and thr

eatened him in English with deportation if he did not vote for

-3- voted i n favor of representation and fifty voted against it, with one void ballot and tw o challengedballots 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 Naturalizatio n 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 statemen ts had been made to a few Hispanic em ployees at Deffenbaugh that the union might "bring in" the INS if it lost th e election a nd that rumors about this possibility had circulated among Hispanic employees

. There was no evidence that the union m ade any of the statements or started the rumors, and there was no evidence of any physical threat s or vandalism in the pre-election period or that the INS ever visited the company before the election. O n e Deffenbau gh employee who worked as a helper, Ignacio Resendiz, testified that the driver of a truc k in which he had been riding over a month before the election had told him about the ben efits 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 s aid 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 ab out the election. Miguel Villa, who was ineligible to vote, reported that an un identified "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 1it. H orton denied threatening Villa, and Villa did not relay this threat to any othe r

employee at Deffenbaugh. The hearing officer did not credit Villa's testimony, an d Deffenbaugh has not challenged her credibility determination. She indicated that she had considered Villa's ineligibility to vote in the election, his apparent difficulty i n 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).
-4- also stated that another employee had told him about hearing a similar rumor, but he didnot 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 unio n 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 cal led if the union lost, but they testified that they did not know the source of th e
ru mors. A few employees said that there were many discussions about the rumor s among the Hispanic employees and that they participated in some of the discussions. In contrast, Diaz testified that t he 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 appeare d
concer ned, and Villa said he heard that two Hispanic employees might change thei r votes because of the rumors. Others testified that t he rumors did not concern them and that they and others did not have problems with "Immigration." Resendiz said th e
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 eviden ce indicated the union was not aware of them. The re also was no approach to Deffenbaugh management or supervisors about th e 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 proceedi ng over which the federal courts have jurisdiction. Rosewood Care Ctr., Inc. v. NLRB , 83 F.3d 1028, 1031 n.1 (8th Cir. 1996) -5- The heari ng officer found that there had not been a coercive or intimidatin g atmosphere which interfered with the employees' free choice. She found that ther e were no incide nts of vandalism or threats of physical violence before the election and that th e statements and rumors were not made by union representatives or agents and there fore should be examined under the third party standard in Westwood Horizon s 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 anonymou s statements and rumors were disseminated without accreditat ion to any individual or the union and that t

his characteristic made them less coercive. She found that they "[did] not creat e an atmosphere of fear and coercion among the employees" an d recommended that the union be certified.
The board adopted th e hearing officer's findings and recommendations because the statements had not

been made close in time to the election or widely disseminated
or rej uvenated before the election and the seriousness of the threats and rumors wa s less tha n in cases setting aside elections. The board certified the union, bu t Deffenb aughrefused to bargain with it or to provide it requested information fo r 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 relevan t bargain ing information violated sections 8(a)(1) and (a)(5) of the National Labo r Relations Act, 29 U.S.C. §§ 158(a)(1) and (a)(5). Deffenbaugh admitted the factua l 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 boar d

2 granted it, finding that Deffenbaugh had raised no new evidence or special-6-

circumsta nces requiring reexamination of the certification and that all of th e certifica tionissues had been or could have been litigated in the representatio n proceeding on the election. The bo ard issued an order directing Deffenbaugh to cease refusing to bargain with the union, to furnish necessary and relevant information, t o bargain upon request, and to post a remedial notice.
Deffenbaugh now petitions this court to set aside the board's unfair la bor practice deci sion and order. Deffenbaugh does not contest the factual findings of the board , i ncluding 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 certifie d because third party threats interfered with the election s o 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 simil ar 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 electio n day. These facts, together with the closene ss of the election, should lead the court to set aside the board's decision an d order and direct the board on remand to conduct a new election. The board respon ds 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 e vidence. The intervening union argues it would be unfair to hol d it responsible for unaccredited and anonymous statements and rumors; suc h testimony should not be credited simply because it was unrebutted since i t is impossible to rebut statements from anonymous individua ls. The union asserts there is substantial evidence in the record supporting the board's findings that only third parties wer e involved and that the union was unaware of the statements and rumors. There i s
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.2 d 325, 328 (5th Cir. 1991) (citations omitted). "Representation elections are not to b e set aside lightly." Millard Processing Servs., Inc. v. NLRB , 2 F.3d 258,-7-

261 (8th Cir. 1993) (citing Beaird-Poulan Div., Emerson El ec. 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 ext ent that they materially affected the outcome of the election. NLRB v

. Mattison Mach. Works , 36 5 U.S. 123, 123-24 (1961) (per curiam); Millard , 2 F.3d at 261 (quoting Beaird-Poulan , 649 F.2d at 592).
Cong ress has designated the board as the expert in representation matters, and in reviewing the board's certification determination, we cons ider whether it "reasonably exercised the 'w ide 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 wi ll be enforced if it correctly applied the law and if substantial evid ence in the record supports its findings. Millard , 2 F.3d at 262 (quotation an d 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 tha t free choice was vitiated. Nabisco, Inc. v. NLRB , 738 F.2d 955, 957 (8th Cir. 198 4). 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 weig ht is given to thi rd party misconduct than to party misconduct because unions and employer s cannot prevent misdeeds by persons o ver whom they have no control, Millard , 2 F.3d at 261 (citations omitted), and conduct which is no t attributed to the union or employer is less likely to affect the outcome of an election. See NLRB v. M ike Yurosek & Sons, Inc. , 5 97 F.2d 661, 663 (9th Cir. 1979) (citation omitted). Third party threats an d rumors of deportation do not necessarily invalidate an election. See NLRB v. Eskimo Radia tor Mfg. Co. , 688 F.2d 1315, 1319 (9th Cir. 1982) (per curiam) (citation s omitted); Q.B. Rebuilders, Inc. , 312 N.L.R.B. 1141 (1993).-8-

There are a number of factors the board should consider w hen deciding whether an election should be set aside because of third party misconduct: the seriousness of the thr eats, including whether they encompassed the entire bargaining unit and wer e widely dissem

inated; whether the people making the threats were capable of carrying them ou t; whether it is likely employees acted in fear; and whether the threats wer e rejuvenatedat or near the time of the election. Westwood , 270 N.L.R.B. 802. Th e 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 i n scrutinizing pre-election conduct but "not the controlling factor"; upholding seventy

three 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 twent

y-six to twenty-four vote in favor of representation after determining that threa ts made to one eligible voter and one noneligible voter did not creat e atmosphere of fear and coercion); see also Crown Co ach , 284 N.L.R.B. 1010 (election setaside 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 differ

ent from Crown Coach on which Deffenbaugh relies. In that ca se there was an environment permeated with vandalism and threats o f deportation and violence, all aimed at a large proportion of the voting unit. Man y pro unionemployees repeatedly made threats of deportation to Hispanic employees , wh o made up over sixty-five percent of the workforce. There were also numerou s threats of physical injury and acts of vandalism throughout the pre-election period and on election day, a

nd the threats were widely repeated among the employees. Rumors about what the union might do if it lost the election were so pervasive th ere that a group of twenty to thirty employees had approached Crown Coach management with thei r
concerns.

A careful rev iew 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-9-

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 suc h statement s. Westwood , 270 N.L.R.B. 802. The union was not responsible for th e stat ements, did not control the people who made them, and was not aware they ha d been made. T he two statements to eligible voters occurred over a month before th e ele ction, were repeated to only a few other employees, and were made whil e 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 Deffen

baugh's objections to the election relate to the unaccredited and anonymous rumors which circulated among the Hispanic employees, but it has no t shown that because of these rumors free choice was impossible. The union was no t responsible f

or the rumors, did not control the people who started and repeated them, andwas not aware of their circulation. The rumors concerned approximately fiftee n percent of the electorate, but there was conflicting evidence over the amount of concern th ey caused. Several Hispanic employees testified that the rumors did not concer n them and tha t they did not know the source of the rumors, and none of the Hispani c employees approached the union or Deffenbaugh management with any concerns about them. Th e INS did not visit Deffenbaugh during the pre-election period. Cf. Q.B

. Reb uilders , 312 N.L.R.B. 1141. These unattributed rumors that the employee s recognizedwere anonymous and unaccredited did not rejuvenate the isolated threats made over a mo nth before the election. See Mike Yurosek , 597 F.2d at 663

. Moreover, the results of the election were no t 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.-10-

It was for the board to make credibility determinations and to weigh th e evidence in reviewing the election, York Prods. , 881 F.2d at 544, 546 (quotation and citatio n omitted), and its order should be enforced if its findings are supported by substantial evide nce 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, andit did not err in concluding that the isolated misconduct and rumors in thi s otherwise clean election did not require the election to be set asid e. Since Deffenbaugh has no t shown the union should not have been certified and it admitted it refused t o bargain with it and provide relevant information, the petition for rev iew must be denied. The remedy the board fashioned is not outside its discretion, see Mil lard , 2 F.3d at 261, and the board is therefore entitled to enf orcement of its order. Earle Inds. , 999 F.2d at 1272.

Forthese r easons we deny the petition and grant enforcement of the board' s order.
A true copy.

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