The petitioner, Kitchen Fresh, Inc., seeks review of an order of the National Labor Relations Board (Board) requiring it to bargain with the representative certified by the Board over the Petitioner's objections. The Board has cross-applied for enforcement of its order, issued as a result of its finding that the Petitioner violated Sec. 8(a)(1) and Sec. 8(a)(5) of the National Labor Relations Act.1 We grant the petition for review and deny the Board's cross-application for enforcement.

The dispute underlying the Board's order concerns the Board's earlier decision to certify the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local # 515 (Union) as the exclusive bargaining representative of an appropriate unit of the Petitioner's employees. On November 23, 1979, the union filed a representation petition with the Board, and a stipulation was entered which defined the appropriate bargaining unit for purposes of the election. The election, which was held on January 17, 1980, was won by the union.2

The petitioner filed 11 objections to the conduct of the election.3 The Board's Acting Regional Director, after conducting an administrative investigation, recommended that a hearing be held to resolve the issues raised by objection 6 and that the other objections should be overruled. On March 26, 1980, the petitioner filed timely exceptions to the Regional Director's report, asserting that a hearing was also necessary to resolve the issues raised by objections 1-4, 7, and 9-11. In its decision and order issued on July 9, 1980, the Board adopted the Regional Director's recommendations, ordered that a hearing be held on objection 6, and overruled the remaining objections.

On remand, a hearing was held on the issues raised in objection 6 on August 12, 1980; the hearing officer concluded that objection 6 was without merit and recommended that the union be certified. The petitioner filed exceptions to the hearing officer's recommendation with the Board. The Board, however, adopted the hearing officer's recommendation and certified the union on December 17, 1980.

Shortly after the Board certified the union as the exclusive bargaining agent for the petitioner's employees, the union requested information regarding the employees in the bargaining unit. The petitioner refused to provide the information, maintaining that the union was improperly certified. In April, 1981, the General Counsel issued a complaint alleging that the Petitioner refused to bargain with the union in violation of Secs. 8(a)(1) and 8(a)(5) of the Act, 29 U.S.C. Secs. 158(a)(1) and (5). In its answer, the petitioner admitted that it had refused to bargain with the union, but asserted that the union was improperly certified. The Board granted summary judgment, concluding that the certification question had been previously litigated and that no new evidence had been presented in the unfair labor practice proceeding. In this court, the petitioner's arguments are directed solely to the certification issue: it argues that the Board's certification of the union was improper because the Board failed to hold a hearing on objections 1-4, 7, and 9-11 and because it concluded that the conduct complained of in objection 6 did not warrant a new election.

In objection 6, the petitioner alleged that union representatives or agents were responsible for circulating a rumor among the petitioner's employees that the petitioner would be able to purchase the authorization cards from the Board and discharge the signers if the union lost the election. The fact that this rumor circulated among the rank-and-file employees is not seriously disputed. The question is whether the union must be held responsible for the rumor4 or, if the union was not responsible, whether the deleterious effect of the rumor had dissipated by the time of the election. NLRB v. Bostik Division, USM Corp., 517 F.2d 971, 975 (6th Cir.1975). The Board found that the union was not responsible for the rumor and that the rumor had been adequately dispelled by the time of the election. These findings must be upheld if they are supported by substantial evidence in the record considered as a whole. N.L.R.B. v. Bostik Division, USM Corp., 517 F.2d 971, 976 (6th Cir.1975).

The petitioner offers two bases for attributing responsibility to the union. First, it argues that Teamsters' organizer Eugene Logan repeated the rumor at several union meetings. Second, it asserts that Glenda Walsh, the nominal head of the in-plant-organizing committee, repeated the rumor and that Walsh's actions must be imputed to the union because of her status as head of the organizing committee. Clearly, responsibility for the rumor must be attributed to the union if either Logan, the Teamsters' organizer, or Walsh, acting as union agent, perpetuated the rumor. See Harlan # 4 Coal Co. v. NLRB, 490 F.2d 117, 124 (6th Cir.1974) cert. denied, 416 U.S. 986, 94 S. Ct. 2390, 40 L. Ed. 2d 763 (1974).

Logan's role in perpetuating the rumor was sharply contested before the Board. One of the petitioner's employees, Ms. Dale Kilgore, testified that Logan had repeated the rumor at an organizational meeting and that, in a phone conversation shortly before the election, Logan had said that the petitioner "might" be able to purchase the authorization cards if the Union lost the election. The Board's hearing officer did not credit this testimony. In our view, the Board's credibility determination was manifestly correct. Kilgore's testimony was uncorroborated and was inconsistent with the testimony of several other witnesses.5 We believe that substantial evidence supports the Board's finding that Logan did not perpetuate the rumor.

With regard to Walsh, the Board concluded that she had repeated the rumor to other employees, but that the Union could not be held responsible for Walsh's remarks because she was not an agent of the Union. The petitioner attacks the latter finding, arguing that Walsh must be treated as an agent of the Union because of her position with the organizing committee.6 It relies upon several cases which have held the union responsible for the conduct of employees who were not members or paid agents of the union. E.g., P.P.G. Industries, Inc. v. NLRB, 671 F.2d 817 (4th Cir.1982); NLRB v. Georgetown Dress Corp., 537 F.2d 1239 (4th Cir.1976); NLRB v. Urban Telephone Co., 499 F.2d 239 (7th Cir.1974).

Generally, a union is not responsible for the acts of an employee, unless the employee is an agent of the union. See, e.g., NLRB v. Georgetown Dress Corp., 537 F.2d 1239, 1244 (4th Cir.1976). To determine whether an employee such as Walsh is an agent of a union, the question must be analyzed within the framework of common law agency principles. NLRB v. Local # 64, Falls City Council, 497 F.2d 1335, 1336 (6th Cir.1974). Common law principles of agency, however, are not to be rigidly applied. 29 U.S.C. Sec. 152(13); Worley Mills, Inc. v. NLRB, 685 F.2d 362, 366 n. 2 (10th Cir.1982). The question whether an employee is an agent is a question of fact, id. at 366; the party seeking to prove that an employee is a union agent must show that the union "instigated, authorized, solicited, ratified, condoned or adopted" the employee's actions or statements. NLRB v. Miramar of California, 601 F.2d 422, 425 (9th Cir.1979). See Worley Mills, Inc. v. NLRB, 685 F.2d at 366. An employee's conduct may also be attributed to the union if the objector can demonstrate that the union has clothed the employee with apparent authority to act on behalf of the union. E.g. NLRB v. Advanced Systems, Inc., 681 F.2d 570, 576 (9th Cir.1982); NLRB v. Georgetown Dress Corp., 537 F.2d 1239, 1244 (4th Cir.1976) ("we think that the union is chargeable with the misdeeds under the principle of apparent authority."). See NLRB v. Urban Telephone Corp., 499 F.2d 239, 243-44 (7th Cir.1974) (Employees conduct was attributable to the union "because of his close connection with the union and the union's failure to repudiate his threats"). At the minimum, the party seeking to hold the Union responsible for an employee's conduct based upon the theory of apparent authority must show that the union cloaked the employee with sufficient authority to create a perception among the rank-and-file that the employee acts on behalf of the union, e.g., NLRB v. Georgetown Dress Corp., 537 F.2d at 1244; NLRB v. Urban Telephone, 499 F.2d at 244, and that the union did not disavow or repudiate the employee's statements or actions. NLRB v. Advanced Systems, Inc., 681 F.2d at 576; NLRB v. Georgetown Dress Corp., 537 F.2d at 1244; NLRB v. Urban Telephone, 499 F.2d at 244.

In light of these principles, we believe that substantial evidence supports the Board's finding that Walsh's conduct may not be attributed to the Union. The evidence clearly indicates that Walsh held no formal position with the Union. Thus, if the Union is to be held responsible for Walsh's actions, the Petitioner must show that Walsh appeared to speak on behalf of the Union, and that the Union failed to repudiate Walsh's statements. The credited evidence, however, does not support such a theory. Although the evidence indicates that Walsh was clothed with some authority to act on behalf of the Union,7 substantial evidence supports a conclusion that the Union disavowed the rumor.8 Because the evidence does not indicate that the rumor was perpetuated by any person with actual or apparent authority to act on behalf of the union, we agree that responsibility for the rumor cannot be attributed to the union.

Because the rumor cannot be attributed to the union, the petitioner must show, in order to prevail on objection 6, that the rumor created an atmosphere that rendered a free expression of ideas impossible. NLRB v. Bostic Division, USM Corp., 517 F.2d 971, 975 (6th Cir.1975). See Worley Mills, Inc. v. NLRB, 685 F.2d at 367; EDS-IDAB, Inc. v. NLRB, 666 F.2d 971, 975 (5th Cir.1982). The Board found that the petitioner held several meetings attended by all the unit employees; at these meetings, the petitioner's president assured the rank and file that it could not buy the authorization cards and, in any event, that none of the signers would be discharged. Moreover, the credited evidence indicates that union organizer Eugene Logan assured the employees that the rumor was without substance. Based on these authoritative statements, the Board concluded that the deleterious effect of the rumor had been adequately dispelled; we believe that substantial evidence supports the Board's conclusion.9

The Regional Director recommended that the remainder of the Petitioner's objections be overruled without a hearing; the Board adopted the Regional Director's recommendations and overruled objections 1-4, 7, and 9-11 because it found that "the Employer's exceptions raise no material issues of fact or law ...." The Petitioner asserts that the Board erred by certifying the Union without holding a hearing on the remaining objections because the objections contained factual assertions which required that the results of the election be set aside.

Initially, we must address a very common procedural problem in this type of proceeding. Consistent with the Board's policy, the affidavits collected by the Regional Director from both the petitioner and the union were not forwarded to the Board. Thus, the Board did not have the full administrative record before it when it adopted the Regional Director's recommendations. This court has consistently condemned this policy because neither the Board nor this court can adequately review the Regional Director's decision to deny a hearing if these affidavits are not made available. E.g., Eliason Corp. v. NLRB, 688 F.2d 22 (6th Cir.1982); Kusan Mfg. Co. v. NLRB, 673 F.2d 150 (6th Cir.1982); ATR Wire and Cable Co. v. NLRB, 671 F.2d 188 (6th Cir.1982); NLRB v. North Electric Co., Plant No. 10, 644 F.2d 580 (6th Cir.1981); NLRB v. Curtis Noll Corp., 634 F.2d 1027 (6th Cir.1980); Prestolite Wire Division v. NLRB, 592 F.2d 302 (6th Cir.1979). See NLRB v. Allis-Chalmers Corp., 680 F.2d 1166 (7th Cir.1982); NLRB v. Klingler Electric Corp., 656 F.2d 76, 84 n. 9 (5th Cir.1981); NLRB v. Belcor, Inc., 652 F.2d 856 (9th Cir.1981); NLRB v. Cambridge Wire Cloth Co., Inc., 622 F.2d 1195 (4th Cir.1980). This court has concluded that "it is an abuse of discretion for the Board to adopt the report of the Regional Director without reviewing the documentary evidence relied upon by the Regional Director." NLRB v. North Electric Co., Plant No. 10, 644 F.2d 580, 584 (6th Cir.1981). This error may serve as a basis for denying enforcement, however, only if the exceptions present substantial factual issues, Revco D.S. Inc. v. NLRB, 653 F.2d 264, 267 (6th Cir.1981); if the objector's allegations would not warrant a new election even if true, the objector has not been prejudiced by the inadequate record. Id. at 268.

This case presents a new variation on this regrettably familiar theme. The petitioner does not appear to have complained to the Board during the representation proceeding about the Board's failure to consider the entire record relied upon by the Regional Director. The Board now asserts that we cannot consider this issue, relying upon 29 U.S.C. Sec. 160(e) which provides that an objection not made before the Board cannot be considered by a court of appeals "unless this failure or neglect to urge such objection shall be excused because of extraordinary circumstances." Although some courts have excused the failure to raise the question of inadequacy of the record, e.g., NLRB v. Eskimo Radiator Mfg. Co., 688 F.2d 1315, 1318 (9th Cir.1982); NLRB v. Advanced Systems, 681 F.2d 570, 574-75 (9th Cir.1982), this court has refused to consider the inadequacy of the record when the question was not raised before the Board. See NLRB v. Chillemi, 652 F.2d 605 (6th Cir.1980). We believe, however, that any objection before the Board would be futile in light of the Board's persistent refusal to transmit the full administrative record despite repeated requests by parties and constant prodding by the courts. In our view, the futility of such an objection amounts to an "extraordinary circumstance" which excuses the petitioner's failure to object to the state of the record.

This circuit has consistently required the Board to consider the entire administrative record, including affidavits, compiled by the Regional Director.10 Several other circuits have condemned the Board's practice of accepting the Regional Director's recommendations without reviewing the entire record.11 The Board, however, has also been consistent; it has unequivocally, but "respectfully", refused to follow these precedents. Southwest Color Printing Corp., 247 N.L.R.B. 917 (1980) ("Respondent cites the Sixth Circuit's decision in Prestolite Wire Division [v. NLRB, 592 F.2d 302 (6th Cir.1979) ] as support for its contention that the Board's adoption of the Regional Director's Report ... without having the entire investigative record before it, constitutes an abuse of discretion and denial of due process. We [the Board] disagree with the Sixth Circuit's holding and respectfully decline to follow it."). Indeed, the Board has refused to follow the Prestolite rule in cases which have arisen in this circuit. Eliason Corporation, 256 N.L.R.B. 167 (1981), enf. denied, 688 F.2d 22 (6th Cir.1982). In light of the Board's persistent and continued refusal to cause the entire administrative record to be transmitted in these cases, and its unwillingness to apply the law of this circuit in cases arising within this circuit,12 we can perceive no reason to require the Petitioner to raise the issue before the Board. The futility of any objection by the petitioner is apparent.

Moreover, excusing the petitioner's failure to raise an objection in this instance is consistent with the policy underpinning 29 U.S.C. Sec. 160(e). The waiver rule of Sec. 160(e) "affords the Board the opportunity to bring its labor relations expertise to bear on the problem so that we may have the benefit of its opinion when we review its determinations." NLRB v. Allied Products Corp., 548 F.2d 644, 653 (6th Cir.1977). See Marshall Field & Co. v. NLRB, 318 U.S. 253, 256, 63 S. Ct. 585, 586, 87 L. Ed. 744 (1943). The Board has had the benefit of persuasive and well-reasoned opinions of several courts of appeal; it has steadfastly refused to modify its policy even when its policy is not consistent with the law of the circuit in which the particular case arose. It has clearly stated its reasoning for adhering to its policy. See Summa Corp., 265 N.L.R.B. 46 (1982). Thus, the policies underlying Sec. 160(e) would not be promoted by requiring the petitioner to object before the Board in this instance. Because of the anomalous circumstances in this case,13 we see no reason to require the petitioner to ask the Board to abandon a position which it has steadfastly maintained despite a decidedly cool reception by the courts of appeal; such an objection would amount, in this instance, to an exercise in futility, and it would not serve the salutory purpose of Sec. 160(e). Thus, we believe that the extraordinary circumstances present in this instance permit us to consider the Petitioner's objection to the Board's failure to consider the complete administrative record.

When the Board fails to consider or transmit the complete administrative record, we cannot ascertain whether the allegations are supported by the evidence gathered in the administrative investigation; thus, we must assume the truth of the employer's undocumented allegations and remand for a hearing if the allegations raise substantial issues which, if proven, would warrant a new election.14 NLRB v. North Electric Co., Plant No. 10, 644 F.2d 580, 582 (6th Cir.1981). See NLRB v. Tennessee Packers, Inc., 379 F.2d 172, 177 (6th Cir.1967) (hearing on objections is required only if substantial factual questions are raised by objections). In our view, several of the petitioner's objections, when viewed most favorable to its position, are sufficiently substantial to require a hearing.

In objections one and seven, the petitioner alleges that Teamster's organizer Logan and another union employee, James Roberts, loitered in a foyer through which voters had to pass to reach the polling room. The petitioner also alleges that the foyer was posted with the Board's standard election notice which prohibits electioneering or loitering during the election. While in the foyer, Roberts apparently asked whether one of the non-bargaining unit employees was "one of the bosses we got [sic] to straighten out or shut up?" This remark was made in the presence of several employees.

In addition to the presence of the union officials, the Petitioner also asserts that a number of pro-union employees, ranging in number from 8 to 30, congregated in the foyer during the last hour of the election and that these employees engaged in electioneering activity which was directed at other employees who were waiting in line (in the foyer) to vote. Glenda Walsh, an alleged agent of the union, was apparently one of the pro-union employees engaged in electioneering in the foyer.

Clearly, these allegations raise material questions of fact: the agency status of Walsh, the coercive effect of the electioneering upon the employees waiting to vote, and the effect of the presence of Logan and Roberts in the foyer. Moreover, these factual issues are substantial; if Walsh is found to be an agent of the union, or if Logan and Roberts engaged in any conversation with employees who were waiting to vote, then a new election must be held. Milchem, Inc., 170 N.L.R.B. 362 (1968) (new election must be held when prolonged conversations occur between representative of party and voter). See NLRB v. Advanced Systems, Inc., 681 F.2d 570, 576 (9th Cir.1982) (applying Milchem rule to employee who is agent of union). Cf. Season-All Industries v. NLRB, 654 F.2d 932, 938-39 (3rd Cir.1981) (agency is factual question requiring hearing). Moreover, electioneering by mere rank-and-file employees may be so egregious that a new election is warranted. NLRB v. Carroll Contracting and Ready-Mix, 636 F.2d 111, 113 (5th Cir.1981) (must hold new election if employee-electioneer disrupts voting procedure). See Worley Mills, Inc. v. NLRB, 685 F.2d 362, 367 n. 4 (10th Cir.1982). Thus, we believe that objections 1, 7, 2, and 3 present substantial and material factual questions which warrant a hearing.

Moreover, we believe that objection 4 is sufficiently serious to require a hearing. In objection 4, the petitioner asserts that alleged union agent Glenda Walsh indirectly threatened an employee. Specifically, Walsh told the employee's sister (who was also an employee) that she "had better straighten her sister out or something would happen to me or her." This threat was repeated by the sister to the employee in the presence of a third employee. Moreover, the petitioner asserts that this threat was carried out: the tires of the employee to whom the threat was addressed were later slashed. The petitioner argues that the threat was serious and that it would have had a substantial effect upon the election if widely disseminated, especially if Walsh is found to be an agent of the Union in this context. E.g., Certain Teed Products v. NLRB, 562 F.2d 500, 510-11 (7th Cir.1977) (less weight accorded to misconduct of employees than to misconduct of union agents). We agree that a hearing should be held to determine whether the threat was made and whether the incident was widely disseminated throughout the plant.15

Consequently, the Board's cross-application for enforcement of its order is denied, the Petitioner's application for review of the Board's order is granted, and this matter is remanded for a hearing on objections 1, 2, 3, 4, and 7.16