July 5, 2002.
CARNES, Circuit Judge:
An employee of Associated Rubber Company was threatened and subjected to greater risk of physical injury on the job
because of his opposition to the union, and news of that happening was disseminated among a number of employees. The
issue is whether that misconduct invalidates the results of the close vote in favor of the union in the certification election
which occurred shortly thereafter. In a split decision the National Labor Relations Board concluded that the election was not
tainted and certified the union, the United Steelworkers of America, AFL-CIO-CLC, as the collective-bargaining
representative of an appropriate unit of Associated Rubber's employees. When Associated Rubber thereafter refused to
bargain with the newly certified union, the Board ordered it to do so. Associated Rubber has appealed that order, and the
Board has cross-appealed asking us to enforce the order. For reasons we will discuss, we set aside the Board's order.
On June 14, 1999, the union filed a petition with the Board seeking certification as *1057 the collective bargaining
representative of certain maintenance workers, truck drivers, and mechanics employed at Associated Rubber's three plants
in Tallapoosa, Georgia, where the company operates its rubber production facilities. A secret ballot election was held on July
23, 1999, and the union won by a vote of 53 to 50, with one non-determinative challenged ballot. Associated Rubber,
however, timely filed objections to the election, alleging that certain pro-union employees had unlawfully interfered with the
election by, among other things, threatening personal harm and property damage to employee voters who did not support the
union in the election.
The Board ordered a hearing on Associated Rubber's objections. At the hearing there was evidence of numerous incidents of
objectionable conduct on the part of some of Associated Rubber's pro-union employees, occurring both before and after the
filing of the election petition, as well as on the day of the election itself. Among other things, there was evidence about what
the parties refer to as the "Banbury mixer incident."