The opinion
EUGENE A. WRIGHT, Circuit Judge
(concurring):
Contrary to the statement in the majority opinion, I am not tempted to hold “that we will no longer sustain orders setting aside elections, or set aside orders sustaining them, in cases of threats as well as in cases of claimed misrepresentations in election campaigns.”
Despite the fact that “it is the Board, not the courts, that is presumed to be expert in this field,” this court has recognized that threats of physical harm from union agents can taint if not invalidate the results of a representation election. See, e. g., Alson Mfg. Aerospace Div. of Alson Indus., Inc. v. NLRB, 523 F.2d 470 (9th Cir. 1975); Sonoco Products Co. v. NLRB, 443 F.2d 1334 (9th Cir. 1971).
To this extent, I disagree with the conclusions of the study, cited in the majority opinion, that employer and union conduct does not have a potentially coercive impact on election results. Threats such as those that occurred here may indeed intimidate employees to vote for the union.
I concur in the result because the employer failed to meet its burden of proof. As we have held recently, “to obtain a hearing on the charge of alleged Union threats and violence, the Employers had to show that the Union’s misconduct interfered with free choice, for or against a bargaining representative.” NLRB v. Spring Road Corp., 577 F.2d 586 (9th Cir. 1978).
The employer here failed to show that the threats to Martinez were made by a union agent and that the threats affected Martinez’s vote. Had the employer established these two facts, this might be a different case.