                        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,                     *
                                      *
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



                                         -2-
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.1 Villa




         1
         Villa also reported that Anthony Horton, an employee who supported the union,
  went to his home and threatened him in English with deportation if he did not vote for

                                             -3-
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.


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).

                                          -4-
       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.2 The general counsel moved for summary judgment, and the board
granted it, finding that Deffenbaugh had raised no new evidence or special

       2
        The board's certification of the union is not subject to direct judicial review, but
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)

                                            -5-
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,


                                            -6-
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).

                                          -7-
       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 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 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

                                           -8-
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 pre-
election 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 fifty-
eight 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.


                                          -9-
       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.




                                          -10-
