New York Shipping Assoication

NEW YORK SHIPPING ASSOCIATION 135 NEW YORK SHIPPING ASSOCIATION AND ITS MEMBERS, AS FOLLOWS : 1. STEAMSHIP LINES AND AGENTS: ALCOA STEAMSHIP COMPANY, INC., AMERICAN EXPORT LINES, INC., AMERICAN -HAWAIIAN STEAMSHIP COMPANY, AMERICAN -ISRAELI SHIPPING CO ., INC., AMERICAN PRESIDENT LINES, LTD ., AMERICAN - WEST AFRICAN LINE, INC., ANCHOR LINE, LTD ., ARGENTINE STATE LINE, ATLANTIC OVERSEAS CORPORATION , BERCOVICI NAVIGATION AGENCY, INC., BARBER STEAMSHIP LINES, INC., BLACK DIAMOND STEAMSHIP CORP., BOISE-GRIF- FIN STEAMSHIP CO., INC., BOOTH AMERICAN SHIPPING CORPORATION , BOYD , WEIR & SEWELL, INC., BRISTOL CITY LINE OR STEAMSHIPS , LTD., BULL-INSULAR LINE, INC., CHILEAN LINE, COSMOPOLITAN SHIPPING COM- PANY , INC., CUNARD STEAMSHIP COMPANY , LTD., DICH- MANN, WRIGHT & PUGH, INC., EAST ASIATIC COMPANY, INC., THOR ECKERT & COMPANY , INC., ELLERMAN'S WILSON LINE NEW YORK , INC., JAMES W. ELWELL & CO., INC., FARRELL LINES, INCORPORATED, FERN LINE , FLOMARCY COMPANY, INC ., FRENCH LINE, FUNCH, EDYE & CO., INCORPORATED , FURNESS, WITHY & CO., LTD ., GARCIA & DIAZ INCORPORATED, GRACE LINE INC., HELLENIC LINES, LTD., HOLLAND -AMERICA LINE, INTERNATIONAL FREIGHTING CORPORATION, INC., ISBRANDTSEN COMPANY, INC., ISTHMIAN STEAM- SHIP COMPANY , KERR STEAMSHIP COMPANY, INC., LLOYD BRASILEIRO , LUCKENBACH STEAMSHIP COM- PANY, INC., MARINE TRANSPORT LINES, INC ., MOORE- MC CORMACK LINES, INC., MOLLER STEAMSHIP COM- PANY, INC., NEWTEX STEAMSHIP CORPORATION, NEW YORK AND CUBA MAIL STEAMSHIP CO., NORTH AT- LANTIC & GULF STEAMSHIP CO., INC., NORTON, LILLY & COMPANY, NORWEIGIAN AMERICAN LINE AGENCY, INC., PANAMA CANAL COMPANY , POPE & TALBOT, INC., PRUDENTIAL STEAMSHIP CORPORATION, QUAKER LINE, INC., ROYAL NETHERLANDS STEAMSHIP COMPANY SEAS SHIPPING COMPANY , INC., SEATRAIN LINES, INC ., SOUTH ATLANTIC STEAMSHIP LINE, STATES MARINE CORPO- RATION, STEVENSON LINE, INC., STOCKARD & COM- PANY, INC., TORM LINES , TRANSPORTADORA GRAN- COLOMBIANA , LTDA., UNION SULPHUR & OIL CORPO- RATION, UNITED STATES LINES COMPANY , UNITED STATES NAVIGATION COMPANY, INC., WATERMAN STEAMSHIP CORPORATION , WESSEL, DUVAL & COMPA- NY, INC., WEST COAST LINE, INC.; 2 . CONTRACTING STEVEDORE MEMBERS : ALLPORTS STEVEDORING CO., INC., AMERICAN STEVEDORES , INC., AMERICAN SUGAR REFINING COMPANY, ANCHOR STEVEDORING CO., INC., ASSOCIATED OPERATING CO., ATLANTIC STEVEDORING CO., INC., BAY RIDGE OPERATING CO., INC., JOHN T. CLARK & SON , CLEMENS CONSTRUCTION COMPANY, 108 NLRB No. 32. 1 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD COHAN CO., INC., COLUMBIA STEVEDORING COMPANY, INC., COMMERCIAL STEVEDORING CO., INC., DANIELS & KENNEDY, INC ., JOHN DOWD COMPANY , FEDERAL STEVEDORING CO., INC., T. HOGAN & SONS, INC., M. P. HOWLETT, INC., HURON STEVEDORING CORPORATION, J. K. HANSON CONTRACTING CO., INC., IMPARATO STEVEDORING CORP., INTERNATIONAL ELEVATING COMPANY, THE JARKA CORPORATION , ADAM ED. KLEIN STEVEDORING CORP., LOGUE STEVEDORING CORPO- RATION, LONE STAR STEVEDORING , INC., MAHER STEVE- DORING CORP ., MARRA BROS., INC., R. MARTORELLA & CO., INC., JOHN W. MC GRATH CORPORATION , MERSEY & HUDSON WHARFAGE CORPORATION , MORACE STEVE- DORING CORPORATION, NICIREMA OPERATING CO., INC., ANTHONY O'BOYLE, INC., A. PEI,iLEGRINO & SON, INC., PITTSTON STEVEDORING CORP., F. RINAL DI & COM- PANY , M. J. RUDOLPH CO., INC., RYAN STEVEDORING COMPANY, INC .. ROSAR SERVICE CORP ., SEABOARD CON- TRACTING COMPANY, INC ., SEALAND DOCK & TER- MINAL CORP., M. P. SMITH & SONS CO ., INC., JULES S. SOTTNEK COMPANY , INC., STATES TERMINAL CORPO- RATION , STEVEDORING EQUIPMENT , INC., STEVENSON & YOUNG, INC., TERMINAL STEVEDORING CO., INC., TRANSOCEANIC TERMINAL CORPORATION , TRIBORO STEVEDORING CORP., TURNER & BLANCHARD, INC., UNITED STATES STEVEDORING CORP., UNIVERSAL TER- MINAL & STEVEDORING CO., VIRGINIA STEVEDORING CORPORATION , WEEKS STEVEDORING CO., INC., WHITE- HALL TERMINAL CORP.; 3. CONTRACTING CARGO RE- PAIRMEN : LYNCH, DONOHUE & DEE , INC.; 4 . CONTRAC- TING CHECKER & CLERK MEMBERS : ALLIED MARI- TIME SERVICES , INC., ANCHOR TERMINAL SERVICE CO., INC., ATLANTIC PIERS CO., INC., BAYWAY TER- MINAL CORPORATION , BEARD 'S ERIE BASIN, INC., DADE BROTHERS, INC., DESPATCH TERMINAL CORPORATION, FIFTH STREET PIER CORPORATION, HICKEY STEVE- DORING CO., INC., HAMILTON PIER CHECKERS, INC., PACKET SHIPPING CORPORATION , ROWLAND & LIESE- GANG, INC., UNITED PORT SERVICE COMPANY ; 5. CON- TRACTING MAINTENANCE MEMBERS : O'KANE MARINE REPAIR COMPANY, KENT EQUIPMENT CORPORATION; 6. CONTRACTING MARINE CARPENTERS : ALPHA IN- DUSTRIES LIFEBOAT , INC., BRENACK , INC., SERAFIM A. CARVALHO , CHELSEA SHIP REPAIR CORPORATION, COURT CARPENTRY CONTRACTING COMPANY, DAYTON CONTRACTING CO., INC., DANIEL J. DEVANEY INC., FORE & AFT CONTRACTING CO., INC., E. G. GRIFFITH COMPANY, INC., HAMILTON MARINE CONTRACTING CO., INC., FRANK J. HOLLERAN , HOOPER LUMBER CO., INC., KRIT LUMBER PRODUCTS INC., LEE & PALMER, MAR- MARINE CONTRACTING COMPANY, MODERN MARINE NEW YORK SHIPPING ASSOCIATION 137 SERVICE CO., QUIN LUMBER CO., INC., TIMMINS LUMBER CO. INC., WATERFRONT LUMBER CO. INC. (Various of the foregoing are also sometimes referred to as members of either the Deepwater Steamship Lines or as contracting stevedores of the Port of Greater New York and Vicinity), Petitioners 1 and INTERNATIONAL LONGSHOREMEN 'S AS- SOCIATION, INDEPENDENT, and AMERICAN FEDERATION OF LABOR INTERNATIONAL LONGSHOREMEN'S ASSO- CIATION.2 Case No. 2-RM-556 . April 1, 1954 SUPPLEMENTAL DECISION AND ORDER Pursuant to a Decision and Direction of Election' issued by the Board on December 16, 1953, an election by secret ballot was conducted on December 22 and 23, 1953, under the supervision of the Regional Director for the Second Region among employees of the members of the New York Shipping Association. The tally of ballots issued and served on the parties on December 24, 1953, showed that the challenges were sufficient in number to affect the results of the election. On December 31, 1953, the AFL filed timely objections to the election. On January 6, 1954, the AFL filed a motion requesting that a tally of the challenged ballots be deferred until the Board had made a determination with respect to its objections. On January 11, 1954, the Regional Director issued and served on the parties his report on challenges and objections in which he made recommendations with respect to the chal- lenged ballots and the objections. As to the objections, the Re- gional Director overruled some and recommended a hearing with respect to those which alleged, in substance, that: (1) The election was conducted in an atmosphere of organized fear, violence, and intimidation; (2) supervisors of the Companies, including some who were at the same time officials of the Independent, participated in activity on behalf of the In- dependent, on the dates of the election and during the period immediately preceding it, and threatened employees with economic reprisal if they did not vote for the In- dependent; and (3) employees of the United Fruit Com- pany, which is not a member of the Association and not a party to this proceeding, were improperly included in the eligibility list supplied by the Association and, as a result, improperly voted without challenge on that ground. On January 22, 1954, the Independent and the AFL, and on January 25, 1954, the Association filed exceptions to the 'The New York Shipping Association and its members is hereinafter called the "Asso- ciation"; the American Federation of Labor International Longshoremen's Association is hereinafter called the "AFL"; and the International Longshoremen's Association, In- dependent, is hereinafter called the "Independent." 2 Footnote 1, supra. 3New York Shipping Association, etc., 107 NLRB 364. 1 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regional Director's report. On February 17, 1954, the Board issued an Order in which it found that the matters set out in (1) and (2), but not in (3), above, raised substantial and material issues of fact which required a hearing for their resolution. In its Order the Board also granted the AFL's motion to defer a tally of the challenged ballots until the Board has made a determination with respect to the conduct affecting the results of the election. A hearing was held at New York City between March 1 and March 18, 1954, before Arthur Leff, hearing officer. The Independent, the AFL, and the Association appeared and were represented by counsel. At the opening of the hearing, the State of New York moved to intervene as a party to this proceeding. The motion was denied by the hearing officer. On appeal, the Board modified the hearing officer's ruling, and directed that the State of New York, although not entitled to the status of a formal party, should be permitted to par- ticipate in the hearing with the right to present evidence and to examine and cross - examine witnesses subject to rules and restrictions determined by the hearing officer in his discretion. All parties and the State of New York were afforded an opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. On March 25, 1954, the hearing officer issued his report and recommendations on objections to the election. In his report, the hearing officer recommended, in effect, that the objection alleging that supervisors of the Companies par- ticipated in activity on behalf of the Independent on the dates of the election and threatened employees with economic re- prisal if they did not vote for the Independent (classified under A, (2), in the Regional Director's report), be overruled. The hearing officer recommended, however, that the objection in which the AFL alleged, in substance, that the election was conducted in an atmosphere of organized fear, violence, and intimidation (classified under A, (1), in the Regional Di- rector's report) be sustained, and that the election be set aside. He further recommended that the Board order a new election at the earliest possible date consistent with ad- ministrative convenience. On March 30, 1954, oral argument was heard by the Board, in which counsel for the Independent, the AFL, the Association, and the State of New York fully participated. On that day, at the time of the oral argument, counsel for the Independent stated to the Board that he was not excepting to the hearing officer's factual findings but only to the interpretation that the hearing officer placed therepn and to his recommendations. The Independent filed no formal exceptions. The AFL filed a brief and exceptions, its exceptions going only to those findings and conclusions "as are adverse" to the AFL and to the hearing officer's recommendation that the Board order an NEW YORK SHIPPING ASSOCIATION 139 election at the earliest possible date consistent with admin- istrative convenience . The State of New York filed a brief.4 The Board has reviewed the hearing officer ' s rulings made at the hearing and finds that no prejudicial error was com- mitted . The rulings are hereby affirmed . The Board has considered the hearing officer ' s report , the exceptions and briefs, the oral argument, and the entire record in the case, and hereby finds as follows: The Conduct Affecting the-Results of the Election The record is lengthy , and the facts and circumstances attending the election of December 22 and 23, 1953, were fully developed through testimony , exhibits , photographs, and even five reels of motion pictures . We have given the issues now before us thorough consideration , and because we are fully aware of the gravity of the waterfront situation and the need for prompt action, we are deciding this phase of the case--as indeed we did earlier phases--without any delay. The Board , like the hearing officer , would have been ex- tremely hesitant in concluding that the conditions that existed at the polling places and within their immediate vicinity in Manhattan and Jersey City on December 22 warranted a finding that the election be set aside. That some tension existed there is understandable . Feelings run high in a contest such as this. Intense partisanship manifests itself in an election of this kind precisely as it does in a political election in which rivalry is bitter . The Board is mindful , too, of the type of employees who voted in this election , and recognizes fully that standards of decorum vary, and that the waterfront is not Park Avenue . For that reason, we are inclined to regard the language quoted by the hearing officer from the General Shoe decision apropos the situation now before us as something less than felicitous . We should not think in terms purely academic of ideal laboratory experiments or "requisite laboratory conditions " in appraising this election for waterfront employees . We feel , rather , that we must evaluate the cir- cumstances with due regard to the realities , and consider the type of employees , the size of the election , the bitterly contested rival union, dispute, the total factual picture within the frame of reference of which the election was held , and the many facts and factors that necessarily must intrude themselves in making a sound judgment. With these general considerations in mind , we turn to the specific allegations constituting the objections to the election, as reflected in the testimony and exhibits and as analyzed 4 The State of New York also submitted a document entitled "Interim Report on Current Work Stoppage," issued March 25, 1954, by the Waterfront Commission of New York Harbor. Counsel for the Association objected to the receipt of this report . As it is not part of the evidence in this proceeding, the Board placed no reliance on it. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the hearing officer in establishing a basis for his recom- mendations. Viewing the occurrences at the polls and in their vicinity in Manhattan and Jersey City as the hearing officer did, we find it unnecessary to discuss the facts with respect to the election in those areas. Suffice it to say that the hearing officer's report adequately reflects the record, and that no valid basis exists, in our opinion, for setting aside the election insofar as occurrences or incidents at or near those polling places are concerned. A different view, however, must be taken of what transpired in the vicinity of the Brooklyn polling place on December 23. The facts are uncontradicted, and counsel for the Independent at the outset of his oral argument before the Board on March 30 began by stating that he was not taking exception to the factual findings of the hearing officer; only to the interpretations put on those factual findings. At the opening of the polls in Brooklyn, a Board agent and representatives of the Independent and the AFL, at the sugges- tion of the police inspector in charge of the police detail at the polls, agrded that the full block of Prospect Avenue between Fifth and Sixth Avenues be established as a "no electioneering" area. Despite this arrangement, adherents of the Independent were observed at different intervals elec- tioneering not only in the prohibited area but even in the polling place itself. Although the police outside the gate leading to the polling place and Board agents inside the voting area quickly and effectively removed violators, these breaches kept recurring. A factor that addedtothe seriousness of these occurrences was the unsavory reputation for crime and violence of the Independent's adherents who were involved. Among those found electioneering inside the polls were "Tony Spanish" Calvo, George Paiszik, and "Red" Kane. Among those observed electioneering immediately outside the gate were "Tough Tony" Anastasia, Joseph Collazzo, Charles "Ba- nanas" Coppolino, and "Tito" Balsano. Anastasia and Calvo s were heard urging employees to vote for the Independent, and adding significantly- -coming from individuals with their reputation--"You know there isn't going to be any police protection after today." Early on the morning of December 23, a group of Independent supporters from the Independent's "Pistol Local" in Manhattan were observed at the intersection of 16th Street and Sixth Avenue in Brooklyn. All wore the buttons or insignia of the Independent. Included in the group, according to witnesses on the scene, were Albert Ackalitis, Danny St. John, Joseph Silverman, John 5 The hearing officer in referring to Calvo's remarks erroneously described him as saying to the voters that they had better vote AFL. The record and the hearing officer's own state- ment earlier in his report clearly show that the reference was to the Independent and not to the AFL. NEW YORK SHIPPING ASSOCIATION 141 Keefe, James Flood, Leslie Bell, and "Machine Gun" Camp- bell--all men with reputations for violence on the waterfrort. The presence of these men was fraught with impending danger. A crucial incident occurred within a short time. At about 10:30 a. m., a group of 50 to 100 Independent adherents, at the direction of Ackalitis, attacked 6 members of the Seafarers ' International Union who were engaged in distributing AFL literature. One of the seamen, Brown, testified: "They all came at us, they rushed at us. They surrounded us, separated us, stomped us, kicked us, pushed us, and half way down the block, they pushed us, pushed me particularly, half way down the block." Three of the men, Torras, McDonald, and Sweeney, received knife wounds and required hospitalization. Brown took a knife away from one of the assailants and turned it over to the police at the precinct station. Danny St. John was names as one of the assailants. Ackalitis who ordered the attack has since been a fugitive. Within a few hours after this incident, and while many of the voters were still going to the polls, newspapers were out on the streets with headlines in bold type screaming of stabbings and fists fights. Later in the day, an AFL organizer, Massa, was seized by two men who tore off the AFL electioneering sign that he was carrying and sent him sprawling to the ground. About 10 minutes later , one of Massa ' s attackers, a public loader identified with the Independent, forced another AFL organizer, Ventre, to stop the car he was driving and ripped the AFL banner off the car . Two other assaults were reported to the police but the identity of the assailants was not extablished. AFL literature was on several occasions snatched from voters' hands by Ackalitis and others . Brown, the seaman, later snatched a knife from one of the attacking group, was chased while passing out AFL literature by the Ackalitis-St. John group, and warned that if he passed out any more leaflets "they would shove it down his throat." Evidence of the back- ground of violence that manifested itself can be found in Brown's testimony that passengers alighting from two of the Inde- pendent ' s buses told some of the Independent ' s supporters who offered them literature in the mistaken belief that they were early arriving voters that "We didn't come down here to vote. We came to straighten out these sons-of-bitches." The testimony of Captain Bradley, president of the In- dependent, before the Kings County grand jury on January 6 and 7 , 1954 --in evidence in this proceeding --is most revealing in establishing the authority and relationship of the various participants in these events . Bradley was at a midtown Man- hattan hotel on December 23 when he received a telephone call from Anastasia to the effect that "we are having a little trouble; some of the boys got a shellacking ." Bradley replied, `Well, if they want to play that way, we can play that way too. I'll send over three or four hundred." He told the grand jury 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he had seen Ackalitis and St. John near the Brooklyn polling place that morning and that he was aware of their criminal backgrounds and reputations, but when asked why he had not removed them from the scene of the election, replied, "or- ganizationwise it would not be right." Although Bradley testified that despite his statement about sending "three or four hundred" men he had not in fact done so, he testified further that about 100 men, without direction from him, had gone from Man- hattan to the Brooklyn voting area. Testimony by another witness at the hearing in this proceeding independently established that about 100 nonvoters arrived by bus near the Brooklyn polling place and engaged in a demonstration for the Independent which required dispersal by the police. Bradley's grand jury testimony sheds light on the report that had spread throughout the Brooklyn election area that the Independent was 'bringing in several hundred reinforcements from Manhattan. Applying as we indicated earlier in this decision a realistic yardstick with a complete regard for the specific exigencies of this case, we have no choice but to reach the conclusion that the hearing officer reached. In doing so, we, too, have serious doubt as to the correctness of the position of the State of New York and the AFL that mere presence in nonre- stricted areas of union officials or adherents with unsavory reputations--even where no overt acts are alleged or shown-- requires that an election be set aside. But in the light of the uncontradicted evidence as to what occurred at the Brooklyn pollirof area, we are not called upon to pass on that contention here. The incidents described here, and detailed with greater specificity in the hearing officer's report, make it abundantly clear that this election was held in an atmosphere that, in the language of Board decisions dealing with objections to conduct affecting elections, was not conducive to the kind of free and unintimidated choice of representative which the Act contemplates.6 Accordingly, we find merit in the objection, classified in the Regional Director's report as A, (1), and shall direct that the election be set aside. Our judgment, we wish to make it clear, is not swayed by efforts at melodrama in overstating the situation or in the recurring repetition of names of individuals with unwholesome backgrounds and picturesque aliases. On the contrary, it was with the utmost deliberation and careful scrutiny of all the facts that we reach this conclusion because the setting aside an election of this size and importance in the circumstances 6Diamond State Poultry Company, 107 NLRB 3; Bloomingdale Bros., Inc., 87 NLRB 1326; Stern Brothers, 87 NLRB 16; G H. Hess, Inc., 82 NLRB 463; P. D. Gwaltney Jr. R Co., 74 NLRB 367; Detroit Creamery Co., 60 NLRB 178. In view of the disposition made herein, we find no need for passing on the other grounds urged by the AFL and the State of New York for setting aside the election, e. g., the inclusion of the United Fruit Company employees in the eligibility list and the announcement on the eve of the election with respect to an increase in welfare benefits. For like reasons, there is no longer any necessity for passing on the challenged ballots. NEW YORK SHIPPING ASSOCIATION 143 that prevail at the New York waterfront is one of grave concern not only to us, who are entrusted with the effectuation of the policies of the National Labor Relations Act, but also to the people of New York and New Jersey, and the rest of the Nation as well. The Holding of a New Election The hearing officer recommended that the Boardorder a new election at the earliest possible date consistent with administra- tive convenience . The AFL excepted to this recommendation and urged instead that an election be held at such time as the Board or the Regional Director determines that there no longer exists an atmosphere of intimidation , coercion , and violence. The State of New York, by its counsel at oral argument, tock the position that a new election be conducted only after it is ascertained "that tranquility has been restored to the port, and a reasonable time, probably at least 30 days, has elapsed since the present work stoppage ceases." The Board in its original decision in this proceeding pointed out that "this is a situation that is uniquely within the province of the Board's jurisdiction , for it is the Board , and the Board alone, that can invoke the kind of machinery that Congress designed specifically for the resolution of a rival union dispute such as we have here. It is a set of circumstances like those that make what ordinarily seems to be stereotyped language, i.e., the effectuation of the policies of the Act, "take on real life and validity." The Board underscored the fact that "the crux of the entire problem is the unresolved representation question," and referred specifically to the report of the President's board of inquiry, dated December 4, 1953, which stated that "This dispute is unique in the history of emergency disputes since the statute was enacted in 1947, because the es- sential differences which seem to be leading to a renewed shutdown on the waterfront are not between the employers and their employees but rather between the two labor organizations which are bitterly contesting the right to represent the em- ployees . The issue of union representation overshadows all others." ( Emphasis added.) The words just quoted are as apropos today as they were 4 months ago . The issue of union representation must be resolved , and the Board as the administrative arm of the Federal Government that has the sole responsibility for resolving that issue does not intend to avoid its responsibility, either by equivocation or by hiding behind overtechnical ex- planations . A new election must be held in order to settle the question concerning representation without delay. We are fully aware of the problems that such a new election entails and have given serious consideration to the statements expressed by the AFL and the State of New York . We propose to meet these problems by incorporating special provisions 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the order directing a new election herein that will, in our opinion, assure reasonably adequate conditions for the holding of such an election. We have not been unmindful of the statements that have been made by the officials of the Independent in the period following the election, and the walkouts and work stoppage's that have taken place on the waterfront of the Port of New York within recent weeks, indeed to this very day. When at the oral argument on March 30, the Board Chairman asked whether the current strike was "an official ILA Independent strike," counsel for the Independent replied that "it is now presently an official strike." When the Chairman inquired as to the objective of the strike, counsel for the Independent replied, "As has been expressed by the president of the group, the strike is to get a certification, a recognition . . . it is a strike for a contract I would say." This explanation was not unique; it has been reflected in many of the public utterances of the top officials of the Independent. Under the circumstances, we have no alternative except to regard the position of the Independent as one designed to thwart the processes of the Board not only by engaging in coercive conduct directed at employees found sufficient to warrant setting aside the election but by engaging in a form of coercion directed against the Board itself in calling a strike to compel certification in the face of a pending unresolved question concerning representation. Such conduct, in our considered judgment, amounts to an abuse of the Board's processes, and calls for appropriate action on the part of the Board. Furthermore, we would consider it most inequitable to the outer parties to this proceeding, and particularly to the employees of the members of the Asso- ciation who are entitled to a speedy resolution of the rep- resentation question, if we permitted the Independent, by its conduct, to frustrate the Board in the application of its pro- cedures as intended by Congress. Accordingly, we shall provide that anew election be conducted; that the Board will fix a date based on an investigation and finding on its part that the circumstances permit a free choice of bargaining representative; that a maximum time limi- tation be placed for the holding of the new election; and that if the Independent does not cease and desist forthwith to engage in conduct designed to thwart or abuse the processes of the Board, the Board will hold the election, but in the exercise of the discretion it has under the Act to guarantee the integrity of its processes and procedures, will deny the Independent a place on the ballot. In announcing our disposition of this problem we wish to make it clear that if any other union in this proceeding engages in similar tactics, it, too, will be treated in like manner. It is our firm belief that in this way we shall achieve the objective of resolving the question concerning representation without unnecessary delay and at the same time establish safeguards that will make a new election possible. NEW YORK SHIPPING ASSOCIATION 145 ORDER IT IS HEREBY ORDERED that the election heretofore held herein on December 22 and 23, 1953, be and the same hereby is set aside. IT IS FURTHER ORDERED that a new election be conducted at such time as the National Labor Relations Board determines that the circumstances permit the free choice of a bargaining representative; that the election date be scheduled no later than 30 days from the date of this Supplemental Decision and Order; and that if the Board administratively determines that the International Longshoremen's Association, Independent, has failed forthwithto cease and desist from engaging in conduct designed to thwart or abuse the processes of the Board, it shall conduct the election, but shall not accord the International Long - shoremen's Association, Independent, a place on the ballot. If any other labor organization engages in similar or related conduct, it shall be accorded like treatment. IT IS FURTHER ORDERED that the Regional Director for the Second Region forthwith enter into appropriate arrangements with the State and municipal authorities to assure reasonably adequate conditions for the holding of a new election, and shall report thereon to the board within 5 days from the date of this Order. Member Murdock took no part in the consideration of the above Supplemental Decision and Order. HEARING OFFICER'S REPORT AND RECOMMENDATIONS ON OBJECTIONS TO ELECTION STATEMENT OF THE CASE' On December 22 and 23, 1953, pursuant to the Decision and Direction of Election issued by the Board on December 16, 1953, an election by secret ballot was conducted in the above- entitled matter under the direction and supervision of the Regional Director for the Second Region, New York City. The tally of ballots issued and served on the parties on December 24, 1953, showed that the challenges were sufficientmnumber to affect the results of the election. On December 31, 1953, the AFL filed timely objections to the election, and on January 6, 1954, the AFL filed a motion requestmgthata talley of the challenged ballots be deferred until the Board had made a determination with respect to its objections. On January 11, 1954, the Regional Director issued and served on the parties his report on challenges and objections. In the report, he made recommendations with respect to the chal- lenged ballots. While overruling certain of the AFL objections, the Regional Director rec- ommended that a hearing be held on threeof them. Those on which a hearing was recommended alleged in substance that: (1) The election was conducted in an atmosphere of organized fear, violence, and intimidation; (2) supervisors of the Companies, including some who were at the same time Independent officials, participated in activity on behalf of the Independent on 'International Longshoremen's Association, Independent, is hereinafter called the In- dependent and, at times, the ILA; the American Federation of Labor, International Longshore- men's Association is hereinafter called the AFL; and the New York Shipping Association is hereinafter called the Association. 339676 0 - 55 - 11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the date of the election and during the period immediately preceding it, and threatened em- ployees with economic reprisal if they did not vote for the Independent; and (3) employees of the United Fruit Company, which is not a member of the Association and not a party to the instant proceeding, were improperly included in the eligibility list supplied by the Association and, as a result, improperly voted without challenge on that ground. On January 22, 1954, the Independent filed exceptions to the Regional Director's report concerning the three objections specifically referred to above, and to his recommendation for a hearing thereon. The AFL on the same day filed exceptions to the Regional Director's disposition, adverse to it, of another of its objections relating to the eligibility lists, classified in the report as B,3. It also excepted to the recommended classification and disposition of the challenged ballots set forth in the report. On January 25, 1954, the Association filed excep- tions to so much of the Regional Director's report as dealt with the subject of supervisors' conduct and an alleged interlocking relationship between Association members and the Inde- pendent through Company agents and supervisors. On February 17, 1954, the Board issued an Order directing hearing on objections to election. In the Order, the Board found that the matters set out under A (1) and (2) of the Regional Director's report--relating to the AFL objections that have been classified above as (1) and (2)--raised substantial and material issues of fact, requiring a hearing for their resolution, as recommended by the Regional Director. However, in disagreement with the Regional Director, the Board found no substantial or material issue of fact raised by the objection relating to the inclusion of United Fruit Company employees in the eligibility list since, as it found, "employees of that Company were clearly not included in the associationwide unit found appropriate by the Board." However, in finding that no need for a hearing existed with respect to that objection, the Board at the same time emphasized that it was not thereby "passing on the effect that the inclusion of the employees of the United Fruit Company may have had on the election." In its order the Board also granted the AFL motion to defer a tally of the challenged ballots until the Board had made a determination with respect to the conduct affecting the results of the election. In ordering that a hearing be held to take evidence as to the objections numbered A (1) and A (2) of the Regional Director's report, and the exceptions thereto, the Board directed that the hearing be conducted by a Trial Examiner assigned by the Chief Trial Examiner, and further directed that the Examiner so designated should pre- pare and serve upon the parties his report and recommendations to the Board as to the dis- position of the said objections and exceptions. Pursuant to notice, and in conformity with the aforesaid Order, a hearing was held at New York City between March 1 and March 18, 1954, before the undersigned, Arthur Leff, a Trial Examiner, duly designated by the Chief Trial Examiner as the hearing officer to conduct the hearing on objections. All parties to this proceeding appeared and were repre- sented by counsel at the hearing. at the opening of the hearing, the State of New York moved to intervene as a party to this proceeding. The motion was denied by the hearing officer. On appeal, the Board modified the hearing officer's ruling, and directed that the State of New York, although not entitled to the status of a formal party, should be permitted topar- ticipate in the hearing with the right to present evidence and to examine and cross-examine witnesses subject to rules and restrictions determined by the hearing officer in Ills discretion. All parties and the State of New York were afforded opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing on the issues. Near the close of the hearing, the AFL moved to amend its objections to conduct affecting the results of the election, by adding thereto an allegation that, with the deliberate intention of influencing the election and as a result of a conspiracy between the Association and the Independent to aid and abet intimidation being exerted upon longshoremen during the course of the election, a public announcement was made on the eve of the election and brought to the attention of longshoremen in the Port of New York, that pension benefits under an Independent- Association jointly managed welfare plan had been increased and would be paid, retroactively to September 1, 1953, to employees entitled thereto. The hearing officer referred the AFL motion to the Board for its consideration at the time it considers the record of this hearing. Evidence offered by the AFL to support the proposed amendment was ruled inadmissible by the hearing officer upon the ground that it was outside the scope of the issues of the particular objections upon which the hearing was directed. However, to avoid any delay that might otherwise be necessitated byapossible remand, the hearing officer, with the agree- ment of the parties, accepted an offer of proof in such form as to allow the Board to consider the proposed amendment on its merits without further testimony, in the event the Board NEW YORK SHIPPING ASSOCIATION 147 decides to grant the proposed amendment or otherwise to consider such matter under the issues as so framed.2 At the conclusion of the hearing, the parties waived the opportunity afforded them to argue orally upon the, record, and elected instead to file briefs. Briefs were received from the Independent, the AFL, the State of New York, and the Association on March 24, 1954.-They have been considered. Upon the entire record in the case and from his observation of the witnesses , the hearing officer makes the following: FINDINGS OF FACT A. General The election was held in three places. On December 22, 1953, polling by secret ballot was conducted at the Polish Community Center in Jersey City and at the United States Government Building in the Borough of Manhattan, and on December 23, 1953, at Prospect Hall in the Borough of Brooklyn. The election hours were from 6 a. m. to 10 p. m. at all three places. At the end of the balloting in Jersey City, the Independent and AFL official observors, along with the representative of the RegionalDirector,signedthe Board's usual form of certification on conduct of election, certifying that the "balloting was fairly conducted, that all eligible voters were given an opportunity to vote their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote." A like certification was signed by Man- hattan observors for both Unions, as well as by the Regional Director's representatives with regard to the election in Manhattan. No such certification was signed, however, at least by the AFL representatives, with respect to the balloting in Brooklyn. The election followed by but about 3 weeks the effective date--December 1, 1953--of the licensing and registration provisions of the New York;New Jersey Waterfront Commission Compact.3 That law stemmed in large measure from the investigation and recommendations of the New York State Crime commission respecting the New York waterfront.4 As revealed in that report, and as also established at least in part by independent testimony in this case, the Port of New York had long been infected with unscrupulous practices and undisciplined procedures, many criminal and quasi -criminal in nature, traceable in large measure to the domination by known and reputed criminals of important ILA locals and key waterfront areas, as well as to control of waterfront hiring that in many instances had been exercised by pier superintendents and hiring agents, who, though in form agents of the shipping com- panies, were in fact identified, in some instances even as officials, with ILA locals and the criminal elements that dominated them. It was largely to eliminate from the New York waterfront scene the criminal elements and corrupt practices that infested it, and to remove the fear, intimidation, and insecurity of waterfront employees bred by criminal rule, that the Waterfront Commission Compact was enacted, requiring, inter alia, on and after December 1, 1953, the licensing of pier superintendents and hiring agents and the registration of longshoremen. In determining voting eligibility in its Decision and Direction of Election, the Board imposed as a requirement that an employee within the appropriate unit, to be eligible, must have worked more than 700 hours during the year ending September 30, 1953. An additional requisite specified was that employees subject to registration must have been registered with the Waterfront Commission in the manner provided by its regulations. The notice of election, in addition to setting forth the other eligibility requirements, stipulated that long- shoremen, checkers, clerks, and timekeepers would be required to show their Waterfront Commission registration cards as a condition to voting. 2 The offer of proof is in the form of a stipulation of facts, supplemented by testimony- - ruled irrelevant but considered as an offer of proof--of Joseph Mayper, counsel for the As- sociation In view of the position taken by the hearing officer on the question of relevancy, he makes no findings in this report on whether the profferred evidence supports the allegation in the proposed amendment. 3 Public Law 252, 83rdCong., Chapter 407, First Session (S. 2382). approved August 12, 1953 4See Fourth Report of the New York State Crime Commission, Legislative Document (1953) No 70. A copy of the report is in evidence as an exhibit in this case. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. As to the objection alleging that supervisors , including some who were at the same time Independent officials, participated in activity on behalf of the Independent, and threatened employees with reprisal if they did not vote for the Independent This objection will be considered first because there is relatively little evidence on the issue raised by it, and it is one that can be quickly disposed of. There is some evidence that former hiring bosses identified with the Independent --notably Anthony ("Tony Spanish") Calvo of Brooklyn--who ceased to function as such after December 1, 1953, because of lack of validation by the Waterfront Commission, engaged in electioneering activities in behalf of the Independent. I do not consider such evidence, however, as falling within the scope of this particular objection. Concerning those who were still supervisors, or claimed to be, at the time of their alleged improper activities , the testimony submitted in support of this objection was confined to the following: 1. Alphonse Iapicca, a longshore organizer for the AFL, testified that at pier 5 in Hoboken, where the Jarko Corporation performs stevedoring services, he overheard Captain Wyple, the terminal manager, commend Independent delegates for bringing to the pier on time the Independent chartered buses that were to take employees to the polling place . He further testified that, as employees were boarding one of the buses, he heard Captain Wyple remark, "Don't forget boys, ILA." Wyple denied making the statements attributed to him by Iapicci, and his denial, corroborated by the testimony of another witness called by the Association, is credited. lapicci also testified that one, "Big Mike, " whom he identified as the loft boss on the pier , boarded the bus and distributed to fellow passengers cards bearing the legend, "Vote ILA." His testimony in that respect stands undenied and is accepted . "Big Mike"-- Michael Russo--has no direct hiring and firing authority , is not employed on a weekly basis by the Jarko Corporation, must himself "shape up" for hiring each morning, and occupies the category generally of a gang foreman. Though his position does not require licensing as a hiring agent, he is validated to the Company by the Waterfront Commission as a foreman. The record sufficiently supports a finding, here made, that he possesses the attributes of a supervisory employee within the definition of the Act in that he responsibly directs the work of employees under him and his recommendations as to discharge are given effective weight. 2. Michael Gallagher, a longshoreman, who on the date of the election was employed at pier 2, Bush Terminal, operated by John W. McGrath Company, testified that as he left the pier at noon that day to go to vote, he heard Michael Clementi, the stevedore foreman,5 tell the men to get on the ILA chartered bus which had come to the pier to provide trans - portation to the polling place, to vote ILA, and not to worry when they got back. Under an election arrangement, stevedoring companies were to release longshoremen for 2 hours on the election date in order to permit them to vote. Gallagher testified he understood Clementi's remark about not worrying to mean that if the men took more than 2 hours it would be all right. Clementi, an admitted hiring agent, who was a member of the ILA prior to the Waterfront Commission licensing requirements , denied making the statements attributed to him. His denial, however, is not credited. 3. Adronicus Jacobs, a longshoreman, who on the date of the election worked at piers 15 and 16 in Brooklyn, operated by Moore-McCormick lines, testified that before Doaraing the bus provided by the ILA to go to the polls that day, he was told by Soto Quatrocci, whom he identified as a foreman, that it was a "lot of politics," that the AFL could not win, that those who felt that way would be jeopardizing their ,lobs, that the men knew the ILA but not the AFL, and that if the AFL got in, the seamen would get their jobs. On earlier occasions, according to Jacobs, Quatrocci had also expressed like views. The Association called Quatrocci as a witness primarily to take issue with Jacobs' assertion that he was a super- visor. Although not questioned on that point on direct examination, Quatrocci on cross denied that he ever talked to anyone about the election, and disclaimed knowing Jacobs. His testimony in that respect is not credited . There is a serious question, however, as to Quatrocci 's super- visory status. Quatrocci occupies the classification of hatch boss, a classification that appears in the twilight zone, and on the supervisory status of which the Board did not expressly pass in its Decision and Direction of Election. The record shows that, as hatch boss, Quatrocci 5 The Michael Clementi in question is not the person of the same name who is an ILA official. NEW YORK SHIPPING ASSOCIATION 149 has some responsibility in assigning and directing work of others in his gang, and seldom does any manual work himself. However, like those in his group, he must "shape up" for work each morning. Quatrocci is registered with the Waterfront Commission as a long- shoreman. His name did not appear on the list of supervisory employees provided by the Association for use at the election. Quatrocci himself voted in the election, and voted without challenge. 4. Frank Piscopo, a longshoreman who is now an AFL organizer, testified without denial that he was present at the United States army base in Staten Island when ILA buses were being loaded to take voters to the polls; that various ILA officials, including Alex Di Brizzi, the president of the Independent local, were present at the time helping load the buses while shouting slogans for the ILA; that also present with them and engaged in like activity were Billy Antigo, a hatch boss , and Jerry Mattera, the general hiring foreman; and that Mattera told the men as they were boarding the bus, "Don't forget, if you're going to work in this place, vote ILA all the way." In connection with this objection, it is to be noted that at a meeting of the Association Conference Committee, held on December 18, 1953, a resolution was adopted that employer members advise their supervisory employees that they must maintain strict neutrality in the election campaign. Employer members were also requested to post on their bulletin boards a notice to employees that it was the policy and desire of the Association and the employer that employees express their own free choice as to their bargaining representative, and also directing employees not to engage in electioneering on the pier for or against either union. There is evidence that the instructions referred to in the resolution were given to supervisors employed by the Jarko Corporation and that the suggested notice to employees was posted at the piers of that Company. There is also evidence indicating that no such in- structions were given or notice posted by the McGrath Company, at least at the pier at which Clementi was hiring foreman. The extent to which the Association's resolution was carried out by other member companies is not revealed. The -record on this phase of the case, considered as a whole, fails in my opinion to justify a conclusion of employer interference with the election through coercive conduct of super- visory employees. The activity of "Big Mike" Russo and Clementi, while reflecting their support of the ILA, would appear to fall within the area of privileged noncoercive expressions of views, arguments, and opinions. Thesamelthink is true of the remarks made by Quatrocci, even if he be regarded as a supervisory employee. Though Quatrocci did refer to the fact that employees might be jeopardizing their jobs if they voted for the AFL, that remark con- sidered in context with his others appears to be in the nature of a prediction, given to support his overall argument, of what the AFL would do if it won an election victory, and not a threat of employer reprisal. The only clear evidence of a coercive remark by a supervisory em- ployee is found in Jerry Mattera 's assertion to employees at the army base, in the presence of ILA officials, implying that their jobs were dependent upon an Independent victory. Because it stands in isolation, I do not think it sufficient to sustain the particular objection here under consideration, which essentially involves a question of employer interference. Consequently, I shall recommend that the objection, classified by the Regional Director as A, (2), be overruled. Nevertheless, I do not believe that Mattera's remark should be disregarded entirely. It was made by a hiring boss, who, though he had recently resigned from the Independent to qualify for a license, had long been identified with that organization, and was in fact still identifying himself with it in participating jointly with Independent officials in their election activities at the moment the remark was made. For that reason, and because Mattera was still in a position to control hiring, T think Mattera's remark is properly to be considered in the context of facts related to the AFL's other objection to be taken up next. Nor in that context is its impact to be minimized--for the army base at which Mattera was hiring boss had perhaps the greatest concentration of longshoremen in the entire Port of New York. C. As to the objection that the election was conducted in an atmosphere of organized fear, violence , and intimidation 1. The evidence a. At Jersey City The polling at Jersey City was conducted on December 22, 1953 , between the hours of 6 a. m. and 10 p. m. at the Polish Community Center , 355 Grove Street. The entrance to the building 1 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in which the polling was conducted is located on the west side of Grove Street, somewhat north of Bay Street which intersects Grove Street in an east-west direction. According to a stipulation entered into by the parties . no express "no-electioneering" limits were fixed by the Board agents conducting the election, although an announcement was made that a rule of reason would be followed. It appears, however, that such limits were fixed by the police. Under a regulation promulgated by the police there was to be no electioneering or loitering on the sides of Grove and Bay Streets where the Polish Community Center was located. The restricted sides of these streets were not , however , closed to pedestrians , and representatives of the competing Unions were allowed to pass through provided the police regulations were not otherwise violated. There was considerable electioneering by both sides at the southwest, southeast, and northeast corners of Grove and Bay. The vicinity of the polling place was heavily policed during the entire election period, with from 17 to 28 police officers present up to 9:30 p. m. At that time the number was augmented to 42, after an additional emergency squad was summoned , as will hereinafter more fully appear. There is no claim that any irregularities occurred inside the polling area at any time. There is a claim that Independent representatives and adherents at times violated the "no- electioneering" restrictions set by the police. To support it, some evidence was presented showing that on a number of occasions Independent partisans , numbering at times as many as 5 or 6 , would cross Bay Street into the restricted zone to meet arriving buses and exhort voters to support the Independent. Among those observed by AFL witnesses to have engaged in such activity, or to have arrived in buses bringing in voters, were Nick Maschucci, presi- dent of ILA Local 1217, a New Jersey local, and John "Ziggie" Seamon, a former official of that local and until the effective date of the licensing provisions of the Waterfront Com- mission Compact a hiring boss inthearea. Both Maschucci and Seamon have criminal records and reputations among longshoremen for force and violence . There is no evidence that they or others who rode in or met the buses threatened voters or physically interfered with them in any way. Whenever ILA adherents crossed into the restricted area, AFL representatives would complain to the police, and the converse would also be true. When the attention of the police was directed to such trespassing , the police were diligent in directing the trespassers back to the unrestricted zone. So far as appears, the directions of the police were obeyed without resistance. Evidence was also presented by the AFL that Nick Maschucci, Ziggy Seamon, and John A. Bushen, a top official of ILA Local 1247 were frequently observed walk- ing up and down on the side of the street where the polling place was located . The evidence does not, however, show that they ever loitered in that zone or engaged in electioneering. The police officer witnesses who were questioned on that point testified that they made no attempt to bar Maschucci or others from passing by the building because the street was open and restrictions had been imposed by the police only against electioneering and loitering. On the street corners outside the restricted zone , there was considerable electioneering by each of the rival factions. As the day wore on the Independent adherents concentrated on one corner, with Maschucci and Ziggy Seamon prominent in their midst, and the AFL adherents on another. Both sides shouted their respective slogans, such as "ILA all the way," and "Don't forget the AFL." There was no outbreak of violence or actual disturbance throughout the day, no arrest, and no complaint lodged with the police--except for those relating to the occasional trespassing of "no electioneering" limits. The several police officers who testified' all agreed that the general condition of the area was orderly and one of them, Captain Edward, described it as "perfect." AFL witnesses referred to but two incidents' involving direct threats. Leonard Ladagona, an AFL organizer, testified without denial that at about 3 p. m., he observed an Independent proponent cross into the restricted zone and solicit voters in line to support the Independent. Ladagona protested to a police sergeant and, as a result, the sergeant ordered the Independent solicitor out of the restricted area, and Ladagona with him. As Ladagona crossed to the unre- stricted side of the street, he ran into Micky Maschucci who angrily said to him, " I am going to blow your ... brains out when this is over." Others in Maschucci's group, including one of Maschucci's brothers, promptly echoed Nicky's sentiments, threatening Ladagona with physical violence at some later time. T 6They were Captain Thomas J. Dunn, who was in charge of the election detail, Captain Edward, who is in charge of the Jersey City waterfront squad, and Detective Robert Clark of the waterfront squad. All were called by the Independent. TLadagona, like Maschucci, has a criminal record. NEW YORK SHIPPING ASSOCIATION 151 The other incident referred to occurred at about 8 p m., when , according to the undisputed testimony of Adrian Di Lange, another AFL organizer, an unidentified person with an ILA button in a car passing the corner on which the AFL contingent was situated , shouted out to those on the corner that they had better get out of town if they did not want anything to happen. After this incident , and as the polling neared its close, there was a mounting tension and a swelling of the crowds of Independent and AFL adherents on their respective corners At about 9 30 p in , the total crowd had grown to about 400 Voting at that time was light, if not virtually at a standstill , but that was because of the lateness of the hour and not because of any obstruction placed in the path of voters desiring to make their way to the polling place Though no actual disturbance occurred , the police officers in charge , as a precautionary measure, summoned an extra emergency squad of about 14 to augment the existing detail. The polls closed without further incident , and after the closing the crowds dispersed. b Manhattan Balloting at Manhattan took place between the hours of 6 a in. and 10 p. m at the United States Government Building located at 250 Hudson Street The entrance to the voting area was on the east side of Hudson Street, about 120 feet south of Dominick Street and about 80 feet north of Broome Street The street intersecting Hudson Street , north of Dominick Street, is Spring Street, which is about 280 feet north of the place at which the entrance to the voting was located . " No electioneering" limits were established on Hudson Street, to the south at the location of a gas station about 180 feet from the polling entrance , and to the north at a point marked on a survey in evidence as "stoop ," about 180 feet north of the polling entrance. The stoop is about 100 feet south of the southeast corner of Hudson and Spring Most voters coming into the area approached from the north . Those coming from that direction by foot had to pass the corner of Spring and Hudson. The buses drove by that corner , although they discharged to the south nearer the polling area . The vicinity of the voting area was heavily policed during the election period with a uniformed squad under an inspector which began with 2 sergeants , 20 patrolmen , and 4 mounted men, and to which there was later assigned 10 additional patrolmen as the crowds grew heavier due to voters remaining in the area There was also an undetermined number of detectives assigned to cover the voting area The record reflects two incidents of irregularity within the voting area itself, both testified to without contradiction by George McMahon, one of the election observors for the AFL. About 4 p in , according to McMahonwhomlcredit , he heard a commotion and, looking up, observed Thomas "Teddy" Gleason, business agent of ILA Local 1346 as well as an International representative , leaning against a pillar and now and then accosting voters . McMahon left his table to lodge a protest but could not find the AFL representative in charge on his return, he observed Gleason being evicted from the room About a half hour after the Gleason incident, McMahon testified further , he observed Jerry Hicky, the business agent of ILA Local 1258, inside the polling place, speaking to voters on line He reported Hicky's presence to a Board agent and arranged to have him evicted As appears from the testimony of Father John M. Corridan , associate director of the Xavier Institute of Local Relations , and widely known as the "waterfront priest," both Gleason and Hicky are reputed to be connected with the criminal element on the New York waterfront . It appears that neither Gleason nor Hicky was eligible to vote in the election No effort was made by the Independent to explain or justify their presence in the polling place. There is no other evidence of improper activity, electioneering or otherwise, anywhere within the area zoned against electioneering Outside that area , there was considerable electioneering by both sides, including the handing out of literature and shouting of campaign slogans . But throughout the day, there was no dis- turbance , no incident calling for police action, no arrest, and no complaint lodged with the police. William F McQuade, deputy chief inspector of the New York Police Department, who heads the uniformed force for Manhattan West, described the electioneering in Manhattan as no different from that in a normal municipal election , except that the people in the area were greater in number . It does not appear that any eligible person desirous of casting a ballot was physically obstructed from doing so Present in the vicinity of the voting area throughout the day were a number of individuals who, at least by reputation, have long been identified with the criminal elements found by the New York State Crime Commission to dominate certain ILA locals and waterfront areas Among those placed on the scene by undisputed evidence in the form of motion and still pictures 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were Albert Ackalitis, Daniel St John, Gerald Weir, Charlie "Bananas" Coppolino, and Joseph Silverman. Most , if indeed not all of them, were ineligible to vote. No explanation was offered by the independent for their presence in the vicinity of the voting area. All those mentioned have criminal records and reputations among longshoremen for force and violence, Ackalitis and St. John being particularly notorious as vicious hoodlums. At the election scene, those referred to identified their connection with the Independent by wearing large ILA buttons The pictures in evidence , supplemented by oral testimony , place them almost invariably outside the diner at the corner of Spring and Hudson in groups with other unidentified individuals-- Ackalitis, St. John, Weir, and Silverman usually together. The pictures show them doing little more than talking to each other and to those in their group. But other evidence shows that they or those in their group would on occasions greet or address passing voters . The only testimony offered of any claimed untoward conduct engaged in by any of those in question was that given by Alvin Rockwell, a paid AFL organizer 8 Rockwell testified that while he was electioneering for the AFL near the corner of Spring and Hudson , shouting slogans such as, "Let's go fellows, let's get rid bf this mob, now," Ackalitis said to him, "All right, Red, you bum, you better go back to that bum's camp on Staten Island, because after Thursday, you won't be working on this waterfront any more " c. Brooklyn Balloting at Brooklyn was conducted in the basement of Prospect Hall between 6 a. in. and 10 p in. on December 23, 1953 Prospect Hall is located on the north side of Prospect Avenue, about midway between Fifth Avenue (running in a north-south direction), which intersects it at the west end of the block, and Sixth Avenue which intersects it at the east end. The distance along Prospect Avenue between Fifth and Sixth Avenues is approximately 600 feet Paralleling Prospect Avenue to the north is 16th Street, and to the south, 17th Street The distance between Prospect Avenue and 16th Street along either Fifth or Sixth Avenue is approximately 300 feet. There is no direct entrance from the street to the basement in Prospect Hall where the voting was conducted . To reach the voting area, voters were required to enter a gate on Prospect Avenue, go through an alleyway about 25 feet long, then into a courtyard about 125 feet deep by 50 feet wide, around the courtyard three-quarter circle along paths marked by barriers set up to direct the flow of voters, and finally down a flight of steps leading to the Prospect Hall basement where numerous ballot tables were set up During periods of the day when voting was heaviest, usually when many buses came at once, the line of waiting voters extended beyond the courtyard, through the gate, and east along Prospect toward 6th At such times it would take voters as much as an hour or more to move from the gate to the actual place of balloting. No fixed electioneering limits were officially established in advance for the election , except that electioneering-was forbidden inside the courtyard. However, at the opening of the election, Inspector Saul Metz, of the New York Police Department, suggested to a Board agent and to representatives of the Independent and the A F of L that they fix "no electioneering" limits along the full block of Prospect Avenue between Fifth and Sixth Avenues. To this the Board agent and the respective Union representatives agreed, and this area was accordingly marked out by the police as a restricted zone. The police detail covering the Brooklyn election numbered at the beginning of the day approximately 20 uniformed men and 15 detectives . Later in the 'morning, after violence broke out inttthe area, the police force was greatly augmented , so that before noon the uniformed force alone included 50 patrolmen, 5 sergeants , 3 lieutenants , 2 captains , and an inspector, and more were added later In addition there were an undetermined number of detectives and police officers attached to other units. One police officer, O'Neill, fixed the total number of - police that were there by afternoon as close to 300. There is considerable evidence of violations by Independent proponeits of the "no election- eering" restrictions that were imposed. Uncontradicted testimony establishes that Anthony "Tony Spanish" Calvo, George Parszik, and "Red" Kane were observed during the day, at least for short periods , inside the polling place soliciting the support of waiting voters- for the Independent Calvo, who himself has a criminal record and reputation for violence, is generally known on the waterfront as a close associate and bodyguard of Tony Anastasia, the president of ILA Local 327-1 and reputedly a power among the criminal elements and 8 Cross-examination of Rockwell developed that he had himself been convicted of two criminal offenses. NEW YORK SHIPPING ASSOCIATION 153 ruler of the piers in the Erie Basin of Brooklyn Until the licensing requirements of the Waterfront Commission Compact had gone into effect, he had been a hiring boss, having suc- ceeded Anastasia in that capacity when Anastasia became the Local president He does not appear to have worked as a longshoreman during the year preceding the election Parszik was a full-time business agent for ILA Local 808 Kane was the delegate of a boss loader's local of the ILA. There is sufficient evidence in the record to justify a finding that none of the three was eligible to vote. Judging from the positions they held , it can only be inferred that they were aware of their ineligibility and wilfully trespassed into this area solely for election- eering purposes. Uncontradicted evidence also establishes the presence outside the gate, but within the "no electioneering" limits agreed to with the police as aforesaid , of numerous persons prominently identified with the independent . Among others shown by motion and still pictures in evidence to be loitering at one time or another either directly in front or in the immediate vicinity of the gate are Anthony Calvo, Anthony Anastasia, Joseph Callazzo,9 Charles (Bananas) Coppolino, 10 and Theodore "Tito" Balsamo ii Calvo particularly appears to havespent protracted periods in front of the gate. 12 Uncontradicted testimony discloses that while at the gate, Calvo distributed ILA literature and shouted ILA slogans One witness, William Mainculf, an eligible voter, testified without denial that when he came in to vote early election morning , he observed both Calvo and Anastasia at the gate entrance and heard them say, "If you want to work, you better vote for the ILA. You know there isn't going to be any police protection after today, and if you vote for the AFL, we will know how you voted, because we know the color of the ballots " As Mainculf went through the gate, Calvo , addressing him directly , said , " Bill, that goes for you, and it goes for the rest of the gang You better vote the right way You know there isn't going to be any police protection after today." Outside the area restricted against electioneering , there was vigorous compaigmng by both sides, as there was at Jersey City and Manhattan But unlike the other places, general condi- tions in the voting area cannot be characterized as on the whole orderly . Not only does the record show occasional outbreaks of violence , one very serious , and threats of violence such as occasional shouts from Independent groups, "If you want to work, vote ILA . There will be no police protection tomorrow," or "If we ever get our hands on you AFL bastards, we will tear you apart," but it shows also that throughout the day the police were required to exercise constant vigilence to ward off incipient clashes between rival union groups . The police officials whom the Independent called to testify concerning conditions at Jersey City and Manhattan had no reluctance in stating that from a police point of view conditions had been generally orderly in the areas under their jurisdiction . But not so Inspector Sam Metz who was in charge of the uniformed police force in the Brooklyn election area In response to questions put to him by the Independent's counsel, by whom he was called as a witness, he testified: Q. Would you say that the entire area , during the period of your tour of duty, was in general quite orderly? A. No, sir. Q. You would not? A. No, sir Q. Where would you say the disorders occurred? A. Well, they occurred in several places To illustrate what he meant by "disorders"--apart from the stabbing incident to be discussed below--Metz gave as an example his observation of hostile bodies of Independent and AFL iCollazzo is president of the ILA Local 1277. The record establishes that Collazzo has a reputation for violence and is identified with criminal elements on the waterfront. ioCoppolino is a delegate of ILA Local 327-1 and is reputedly Anastasia's personal body- guard. Like Anastasia, he has a reputation for violence. iiBalsamo, a hiring agent who was denied clearance by the Waterfront Commission, has a reputation among longshoremen for criminal violence. 12 Edward P. O'Neill, a police officer attached to the Waterfront Commission, testified credibly that he observed Calvo in front of the gate constantly from 12:15 to 1:30 p. m., entire period during which he kept that point under observation from a neighboring roof, taking motion pictures. Another witness, Daniel Nilva, who took the still pictures, testified that he observed'Calvo constantly at the gate between the hours of 10 and 11. Other witnesses placed him there at other hours. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adherents , numbering perhaps 50 in each, approaching each other in menacing fashion , making it necessary for police quickly to move into divert them from each other before they clashed. The example he gave, Metz made clear , did not represent an isolated incident , but described a situation that arose a number of times during the course of the day, and represented a continuous threat. The police , he testified , had difficulty throughout the day in averting violent clashes--and , as will hereinafter appear, did not always succeed. As Metz' testimony further shows, the focal point of infection , where the police experienced their greatest difficulty , was inthearea of 16th Street and Sixth Avenue. 13 To that intersection, there had come very early that morning a group of Independent supporters , wearing independent buttons, who are identified with Micky Bowers ' ILA Local 824, commonly known as the "Pistol Local" that exercises jurisdiction over certain west side piers in Manhattan . Among those in the group were Albert Ackalitis , Daniel St John, and Joseph Silverman --who, as found above, had also been stationed in the Manhattan voting vicinity the day before --and, in addition, John Keefe, James Flood , Leslie Bell, and Frank "Machine Gun" Campbell , who, like the others mentioned , have criminal records and reputations on the waterfront for force and violence. Captain William Bradley , president of the independent , testifying before the Brooklyn grand jury during its investigation of the election violence , 14 admitted that he had observed Ackalitis, St. John, and others with them, along with Micky Bowers, in that area early that morning when he had made an inspection tour of the vicinity He also conceded that he was then aware of their criminal records and character Although he disclaimed - - I believe honestly--personal responsibility for their presence in the locality , his testimony leaves no doubt that he knew they were there through arrangements made, if not by the International officers , at least by those representing some responsible segment of the organization he heads When asked why, knowing the character and reputation of these individuals , he had taken no action to have them removed , but had instead tacitly accepted their presence there, Bradley replied that although he recognized that "morally " he should have taken action "organizationwise it would not be right and we have all that in mind." The record reflects a number of incidents of violent and threatening conduct by Ackalitis and his group. Thus, Bernard Brown , a member of the AFL Seafarers' International Union, who was campaigning for the AFL , testified without denial, and it is found , that while distrib- uting AFL literature nearby , Ackalitis and others in his group on a number of occasions violently snatched from voters ' hands the literature Brown had given them. Later the Ackalitis group "chased" Brown from his distribution station, with Ackalitis warning Brown that if he passed out any more literature " they would shove it down his throat" and St. John joining in by voicing similar threats. 15 Brown further testified without denial , and it is found , that after he was "chased" but while he was still in that area two buses came in with passengers When the passengers were ap- proached by ILA men bearing literature , they said, "We didn't come down here to vote We came here to straighten out these son-of-bitches." The passengers in these buses , according to Brown, made no attempt to go to the polling place instead they reported to Ackalitis and joined his group. The activities of the Ackalitis group culminated in an outburst of serious violence at about 10.30 a. m that morning, when Brown returned to the corner of 16th Street and Sixth Avenue, accompanied this time by Leonard Torres, Allen McDonald, John Sweeney , and two others- -all members of the Seafarers ' International Union--who had grouped together at that labor organization' s hall for the purpose of driving down to the voting area to distribute literature. The members of the seafarer's group carried with them , in addition to the literature they were to distribute , sandwich placards reading, "Throw Anastasia out." As they left the car in which they had come to 16th Street and Sixth Avenue, and were about to begin their dis- tribution activity , Ackalitis , according to their undemed testimony , pointed at them exclaiming, "Get the dirty bastards ." At once, a large number in the Ackalitis group, numbering from 50 to 100, rushed the seamen en masse , separated them , pummeled, beat, and kicked them. Knives 13 That intersection was not the main artery to the polling place Although there were voters who approached Prospect Hall past that point, the majority arriving by public transportation or by foot came along Prospect Avenue from the west. Those who came by bus were at first discharged on Fifth Avenue near Sixth Avenue , later at a point on Sixth Avenue closer to the Prospect Hall than the point at which this group was stationed. 14 The grand jury minutes are in evidence in this proceeding, is There is also evidence of similar snatching of AFL literature from voters' hands at other points in the vicinity. NEW YORK SHIPPING ASSOCIATION 155 were used . Before the fray was over , Torres had been stabbed in the diaphragm . McDonald in the back, and Sweeney in the stomach . All required hospitalization . After this incident Ackalitis disappeared . An alarm for his arrest was sent out by the police the same day, but he has been a fugitive since Not long thereafter , a report spread through the area that the Independent was bringing in several hundred reinforcements from Manhattan That this report was not entirely without foundation is revealed by Bradley ' s testimony before the grand jury , in which he in effect admitted having a telephone conversation with Anastasia that morning in which Anastasia complained that they werehavinga "little trouble" and that "some of the boys [had] got a shel- lacking," and in which Bradley had replied, "Well, if they want to play that way, we can play that way, too . I'll send over three or four hundred " Although denying in his testimony before the grand jury that in fact he had sent any Manhattan men to Brooklyn , Bradley conceded that he had earlier been in communication with John Bowers of the "Pistol Local ," who had advised him that an official of that local had been beaten in Brooklyn and that several hundred men were ready to come over to Brooklyn for "protection" purposes 16 Bradley testified that he had urged Bowers to hold off sending his men , at least until after Bradley could make an attempt to secure police protection instead , and that that still was his position even after his talk with Anastasia , he testified , however, that , without direction from him, about 100 men, according to his understanding, had nevertheless gone to the Brooklyn voting area from Manhattan. Bradley's understanding of the situation is confirmed by other reliable record evidence, showing the arrival by bus later that morning of about 100 nonvoters who immedi- ately upon their arrival engaged in a demonstration for the independent that-had to be dis- persed by the policie. Following the stabbing incident , and the report of the arrival in Brooklyn of ILA reinforce- ments from Manhattan , tension mounted in the area , with the result that the police officers in charge found it necessary to call in emergency reserves to quell the growing threat of further rioting. The stabbings were not the only eruptions of actual violence that broke out in the vicinity of Prospect Hall that day Thus, Daniel Nelva testified --his testimony in that respect being substantially supported by a photograph of the occur rence - -that while at the corner of Prospect and Fifth at about 10 a m. he observed a man with blood on his lip point at men across the street distributing AFL literature, and that immediately thereafter a group of men wearing Independent insignia rushed across to the southwest corner of the intersection where they engaged in a brief but violent altercation with the AFL adherents, that ended only with police intervention. Philip Massa , an AFL organizer , testified credibly , and it is found , that about 5:45 p. in. on Fifth Avenue, south of 16th Street, he was seized by two men who tore off the AFL electioneering sign he was carrying and "slugged me"--"hit me on the head with his fist and I went sprawling on the ground ." Vincent Ventre, another AFL organizer , who wit- nessed the incident, identified one of Massa's assailants as a public loader , Buckholtz, iden- tified with the Independent . About 10 minutes after the Massa incident , according to Ventre's further credited testimony , Buckholtz forced him to stop the car he was driving through the area , ripped off the AFL banner on it, and called him a "no good AFL bastard." Apart from the incidents mentioned , which are established by independent evidence in the record. there is testimony by police officials of 3 complaints of simple assault in the voting area re- corded on police records, all 3 alleged to have been inflicted upon AFL supporters, the identity of the assailants not being disclosed. 17 The violence that occurred at the Brooklyn polling area received wide--and somewhat embellished - -publicity while the election still had hours to run, through lead stories carried in the local afternoon newspapers under banner headlines , such as "4 KNIFED IN PIER VOTE" and "FISTS FLY AS DOCKERS VOTE," and referring in their body to riotous conditions in the voting area 16 Though a rumor was current at the time that Henry Bowers, an official of the "Pistol Local" had been beaten up in the general vicinity of the voting area, police investigation of that rumor failed to uncover anything to confirm it, according to Inspector Metz. n Those stated to have been assaulted are Anthony Bruno, a longshoreman at 9 a. m., and Geiling, a longshoreman, and Leon Ryzop, an AFL organizer at 11 a. m. According to Police Inspector Metz, Ryzop and Geiling did not report the assaults upon them, claimed to have occurred at 11 a . m., until 6:30 that evening. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Analysis and conclusions If there were no more to this case than Jersey City and Manhattan, I should have hesitated long before concluding that the objection with respect to the atmosphere of the election is so substantially supported as to warrant a recommendation that an election of this size be set aside and a new one run. There was considerable tension in the area of the Jersey City polls particularly toward the close of the balloting , but some tension in an election of this kind is to be expected , and I am unable to agree with the AFL that the general atmosphere there was of such a character as necessarily to impede the free expression by voters of their will By and large the conditions in the Jersey City voting area were kept orderly--and so, too, were they at Manhattan. At neither of these places was there any actual disturbance or outbreak of violence. And though there are 2 incidents involving threatening statements in New Jersey , 1 by an unidentified person, and 1 such possible incident at Manhattan,18 I do not think that these incidents , which would have stood in isolation if Brooklyn could be disregarded , would themselves have been viewed as so damaging to the freedom of the election as to warrant the drastic action that is recommended below The record does show, it is true, both at Jersey City and at Manhattan, the presence in the general voting vicinity--at Manhattan a block and a half from the actual polling place--of a number of individuals of unsavory character and criminal reputation prominently identified with the Independent But I have serious reservations about the validity of a principle, such as is urged upon me by the AFL and more vigorously by the State of New York, that would hold that , even without overt acts or improper conduct, the mere presence in the general neighborhood of a Board election of a union 's supporters who have criminal records or coercive backgrounds , or the solicitation anywhere on the day of an election of voters' support by such persons; is alone enough to require invalidation of an election victory. While there is a distinction, that argument in a sense presents a different facade to the contention advanced by the AFL at the original hearing in this proceeding--and which the Board in its Decision and Direction of Election was obliged to reject, because under the law as now framed it could not do otherwise, whatever its own feelings might be--that in view of the history of the Independent's operations on the waterfront and the character of those in control of important segments of that organization the Independent should be found disqualified as a labor organi- zation and ruled out from a place on the ballot . However I pass no final judgment here on whether the principle urged is a valid one, for, valid or not, decision in this case need not turn on it, since, though sparse in Manhattan and Jersey City, there is abundant evidence of overt acts and improper conduct by such people in Brooklyn A more clearly compelling basis revealed by the Manhattan evidence for upsetting the results of the election is to be found in the unwarranted invasion of the Manhattan polling place by two Independent officials , Gleason and Hicky , while voting was in progress. Their conduct in that regard clearly represented a wilful flouting of the Board's election rules Though these may appear in the overall picture to be but minor improprieties , there is Board authority for the proposition that violation by even one union official of an election rule of this kind, though not otherwise established to be accompanied by untoward conduct, is enough to constitute a vital interference with an election , justifying its invalidation . See Detroit Creamery Co , 60 NLRB 178.19 In any event, whatever the situation might have been in Jersey City and Manhattan, there can be no doubt on the record of this case that the incidents which occurred and the atmosphere which was created in the Brooklyn voting the following day were not conducive to a full and free expression by employees of their representation will. It is obvious, of course, that an election may not be two-thirds valid If tainted in part, all of it must fall In Brooklyn , as in Manhattan, there were wilful violations by Independent supporters, in- cluding two local officials , of the Board ' s-rule against electioneering in the polling places, and, besides , unauthorized trespassing , loitering , and electioneering by independent officials is That incident, involving a statement by Ackalitis to Rockwell, is reported at the end of the discussion of the Manhattan evidence. The Independent argues that, as Rockwell was a paid AFL organizer, Ackalitis' statement to him should be construed as no more than a taunting suggestion to Rockwell that after the Independent won the election his work as an organizer on the waterfront would be over. I think that is at least a possible inference. 19And cf. Alliance Ware, Inc., 92 NLRB 55, which cites Detroit Creamery with approval NEW YORK SHIPPING ASSOCIATION 157 and those known to be closely associated with them inside the area adjacent to the polling place that had been marked out a restricted zone. But, in addition, there was more to cloud the election atmosphere and to give it the coloration of force, violence, and intimidation. There were on the part of independent supporters threats of violence and threats of job loss, the snatching of AFL literature from the hands of voters, a number of simple assaults, and, most serious of all, a felonious massed assault resulting in the stabbing of three AFL sup- porters. And there was more, such as an invasion from a Manhattan local, the leadership of which was notorious for violence, ofahundred or more men who had no legitimate business in the Brooklyn polling area, and who, immediately upon their arrival, began a demonstration that the police were obliged to disperse. Disorders and near disorders erupted on a number of occasions Throughout the day there was a continuing threat of physical conflict between the rival groups. And the virtual army of police that had to be brought in to maintain order necessarily contributed to the rioutus atmosphere of the area . To those voters who had not yet arrived to vote, news of violence and rioting in the voting area was carried by screaming headlines in the afternoon papers released many hours before the voting was due to end. Against this background of overt violence, I think it can reasonably be inferred that the continued presence at or near the polling place, in some instances at the entrance gate, of individuals who had been associated in the past with criminality on the waterfront carried with it a coercive force, if only because it tended to instill in minds of voters the fear that if the AFL won, the independent would not abjectly surrender without a show of violence. Indeed, it appears that at least one of those individuals--Tony Calvo, who patrolled the gate to the polling area for protracted periods of time--did not leave such an inference to chance, for the record shows him declaring to voters that they had better vote AFL if they wanted to work, that "there isn't going to be any police protection after today " On the basis of facts in some cases far less compelling than those in this record, and even where, unlike here, the incidents found were removed in point of time and place from the actual election setting , the Board has set aside elections on the ground that they were not "held in an atmosphere conducive to the sort of free, unintimidated choice of representatives that the Act contemplates " See, e g , Gwaltney, Jr. and Co., 74 NLRB 367, Stern Brothers, 87 NLRB 16, Bloomingdale Bros., Inc ,-87 NLRB 1326, Diamond State Poultry Co., 107 NLRB 3 It is no defense to the Independent that most of the activities here relied on to support a find- ing of an improper atmosphere were committed by individuals who in a strict sense were not Independent officials To begin with, even were ordinary agency principles controlling, I think enough appears in the record to impute responsibility to the Independent for the invaders from Manhattan and for the violent conduct of Ackalitis et al., resulting in the stabbing incident which, more than any other single factor, contributed to the formation of the climate that is here condemned As has already been observed, Captain Bradley's own testimony before the Brooklyn grand jury leaves little doubt that when he first saw the Ackalitis group in the voting vicinity early that morning, he assumed them to be there through arrangement made by a responsible segment of his labor organization, and that it was only because he thought "orgamzationwise it would not be right" to do anything about it, that he did not seek their removal. Thus in effect Bradley tacitly acquiesced in and ratified their presence in the locality on behalf of the organization he heads It may well be that Ackalitis, St John, and the others were not sent there primarily to intimidate voters in their voting choice--their selection of a station in Brooklyn at a street corner where relatively few voters passed gives some plausibility to that hypothesis--but rather, were there primarily for what they con- sidered "protection" purposes . But the very presence of such enforcers of mob rule could reasonably be anticipated to lead toward violence, as in fact it did. Bradley's grand jury testimony shows that he was under no illusion as to this--aril particularly so because, as he believed, and as certain portions of this record may suggest, the AFL may have had a number of their own enforcers on the scene, in the form of seamen, a situation that could only add to friction sparking trouble. In any event, even if the atmosphere of violence and disorder that pervaded the Brooklyn election scene had been created by persons for whose actions responsibility could not be imputed to the Independent under common law agency principles, the result here reached would yet to be the same. The issue here is not one of unfair labor practice liability, but whether, under all the circumstances, the election was held in a climate conducive to the sort of free, unintimidated choice of representatives the Act contemplates. The absence of agency responsibility is not controlling on that issue--"any more than would the fact that a hurricane or other Act of God could not be attributed to an employer neces- sarily lead to the conclusion that an election conducted in the atmosphere created by such a nat- 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ural phenomenon must be upheld as a true expression of the employees' desires ." Gwaltney, Jr. & Co., supra . See also Diamond State Poultry Co., supra. The Independent in its brief makes the following somewhat startling statement: There is no arguing the point that the presence of thugs and tough characters might well intimidate a potential voter , but it could only intimidate him to the extent of scaring him away from the polls . This type of intimidation has not been asserted , and in fact is ruled out when we cohsider that 21,128 men out of a possible 24,153 voted. Even accepting the premise stated that a potential voter might be intimidated only "to the extent of scaring him away from the polls," that alone is reason enough to set aside the elec- tion. The violent atmosphere showed itself in Brooklyn during the relatively early hours of the election, and one can only speculate as to the number of those who, by reason of it, might have been deterred from coming to the polls because they may have considered discretion the better part of valor . The Board never requires proof, either in unfair labor practice cases or election cases, that given individuals have been in fact coerced by improper conduct; it is sufficient that the conduct found improper be such as to have a tendency to coerce. See G. H. Hess , Inc., 82 NLRB 463; U. S. Rubber Co., 86 NLRB 3, 5; N.L.R.B. v. James Thompson & Co., 208 F. 2d 743, 747. Nor is it necessary to show that election impro- priety affected enough employees to change the result . Once it is shown that an election was conducted under such circumstances as to deter any voters from expressing their free choice, the results of the entire election must be canceled out. The Board's function and duty in cases of this kind was expressed by it in General Shoe Corp., 77 NLRB 124, as follows: In election proceedings , it is the Board's function to provide a laboratory in which an experiment may be conducted , under conditions as nearly ideal as possible , to determine the uninhibited desires of the employees . It is our duty to establish those conditions; it is our duty to determine whether they have been fulfilled . When, in the rare extreme case, the standard drops too low, because of our fault or that of others, the requisite laboratory conditions are not present and the experiment must be conducted over again. That is the situation here. And that, too , is the situation in the instant case. For the reasons stated, I recommend that the objection , classified in the Regional Di- rector' s report as A, (1), be sustained , and that the election be set aside . I further recommend that the Board order a new election at the earliest possible date convenient with administrative convenience. ARTHUR S. MACH, YETTA MACH, SAM GELLER, RHODA SOLOMON and BEVERLY GELLER, COPARTNERS trading as MACH LUMBER COMPANY, PHILYET CORPORATION AND CAPITOL WHOLESALE SUPPLY COMPANY t and MIS- CELLANEOUS INDUSTRIAL WORKERS UNION, LOCAL NO. 134, affiliated with DISTILLERY RECTIFYING & WINE WORKERS INTERNATIONAL UNION OF AMERICA, AFL, Petitioner . Case No. 4-RC-2295. April 5, 1954 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William Naimark, hearing officer . The hearing officer's rulings made 1The name of the Employer appears as corrected at the hearing. 108 NLRB No. 34.