Willis Shaw Frozen Express, Inc.

WILLIS SHAW FROZEN EXPRESS, INC. Willis Shaw Frozen Express, Inc. and General Drivers & Helpers, Local 823, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, Petitioner. Case 26-RC--4387 February 28. 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret mail ballot was conducted between December 29, 1972, and February 9, 1973, under the supervision of the Acting Regional Director for Region 26 among the employ- ees in the unit described below. Upon the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 69 eligible voters, 69 ballots were cast, of which 11 were for the Petitioner, 17 were against the Petitioner, and 41 were challenged. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, the Acting Regional Director conducted an investigation and on March 28, 1973, issued and duly served on the parties his Report on Challenges and Objections in which he recommended that the objections be overruled, that the challenge to I ballot be sustained, and that the challenges to 40 ballots be overruled. Thereafter, the Petitioner and the Employer filed timely exceptions to the Regional Director's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The following employees of the Employer constitute a unit appropriate for the purposes of i The Union's exceptions take no specific exception to the Regional Director's finding that its Objections 1 and 2 are without merit We shall adopt his recommendations insofar as they are unrelated to our subsequent 267 collective bargaining within the meaning of Section 9(b) of the Act: All systemwide regular and regular part-time loader drivers, mechanics, and shopmen of Willis Shaw Frozen Express, Inc., excluding all system- wide regular and regular part-time over-the-road direct employee drivers, all single owner-opera- tors of equipment leased to the Employer, all nonowners of equipment leased to the Employer, all office clerical employees, managerial employ- ees, guards, and supervisors as defined in the Act. 5. The Board has considered the Regional Direc- tor's report, the Petitioner's and Employer's excep- tions and accompanying briefs, and the entire record in this case, and makes the following findings: As noted, the Regional Director recommended that 40 challenged ballots be opened and counted as they may be determinative of the election. The Employer excepts to the Regional Director's finding that the two employees who cast challenged ballots, Charles L. Tillotson and Don Walters, had not abandoned their positions with the Employer. In our view, contrary to the Regional Director, a material question of fact has been raised as to the eligibility of these two named voters and we shall order that this question of eligibility be determined in the manner herein set forth. As the remaining 38 challenged ballots may be determinative of the election, we shall direct that the 38 ballots be opened and counted, and, if the challenged ballots of Tillotson and Walters are then determinative, that the Regional Director conduct a hearing to determine their eligibility. If the Union receives a majority of the ballots cast, either upon the opening of the 38 challenged ballots or as a result of resolving the remaining two challenged ballots, we shall direct that the Regional Director issue an appropriate certification. If, however, it is deter- mined at either of these stages of the proceeding that the Petitioner cannot receive a majority of the ballots cast, we shall direct that the election be set aside and a second election be conducted for the reasons described below. The Regional Director found no merit in Petition- er's Objections 3 and 4, and recommended that they be overruled.' We do not agree. After the commencement of the Petitioner's organ- izing campaign, a series of abhorrent acts were committed which the Regional Director determined could not be considered because they occurred prior to the filing of the petition herein.2 In the ordinary findings as to Petitioner's Objections 3 and 4 2 The Ideal Electric and Manufacturing Company, 134 NLRB 1275 209 NLRB No. 11 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD course of events, we would agree with the Regional Director, unless we found that an election was conducted in the face of an often violent and emotion-filled strike and in an atmosphere of confusion, violence, and threats of violence which might be expected to generate anxiety and fear of reprisal, thus rendering impossible a rational, un- coerced expression of a choice as to bargaining representative. It is, in our opinion, immaterial whether the Employer or the Petitioner committed the acts and whether or not the commitment of such acts could be probatively attributed to either the Employer or the Petitioner. The question before us is: Did the acts alleged make a free election impossible? Although certain acts were committed during the crucial period, there were acts found to have been committed prior to the filing of the petition and also after the voting. These facts must be considered to create an understanding as to why the election must be set aside.] Further, it is within the province of the Board to set an election aside in order to protect the basic values of the Act, even though all the conduct occurred before the petition was filed.4 The Petitioner, in its objections, alleged certain acts and, based on the findings of the Regional Director, we conclude that these acts destroyed the conditions necessary for a fair and free election. Among the matters alleged by the Petitioner are the following: (1) On October 30, 1972, the Employer's gateman, Frank Oliver, who the Petitioner contends was a guard, allegedly stabbed Union Organizer Lloyd Randolph, who was picketing in front of the Employer's premises. Oliver was arrested, charged with "assault with intent to kill," and was awaiting trial at the time of the Regional Director's investiga- tion. (2) On November 6, 1972, two strikers, while picketing, were passed by an Employer's truck driven by an unknown driver. The unknown driver made a derogatory finger sign to the pickets, whereupon Greenlee, one of the pickets, returned the sign. The truck stopped and the unknown driver assaulted Greenlee while the Employer's regular driver, Allen, stood by. Greenlee reported the incident to the police and swore out a warrant for the arrest of Allen who has not been located, and the warrant is still outstanding. (3) In October 1972, while striking employees were picketing the Employer's truck at the Campbell Soup Co. plant in Fayettesville, Arkansas, the Employer's truckdriver, Ollie Presson, allegedly displayed a sawed-off shotgun to the pickets, who 3 Universal Manufacturing Corporation of Mississippi , 156 NLRB 1459, 1460 1. Automotive Controls Corp, 165 NLRB 450, 462 4 Weather Seal Incorporated 161 NLRB 1226, 1228-29 5 We particularly note that all of the above-described conduct appears to have been directed at the Union 's organizing affects reported the matter to the sheriff's department. The sheriff arrested Presson on his return to the Employ- er's plant and confiscated the gun. Presson was charged with carrying concealed weapons, failed to appear at his trial, and was fined the amount of his posted bond ($114). (4) On December 9, 1972, some unidentified person(s) fired shots near the picket line which dispersed the pickets. While the Employer's guard reported the shooting to the sheriff's office and accused the pickets, the sheriff found on his investigation that a camping trailer used by the Union which was located across from the Employer's plant entrance had been hit by six projectiles that left five indentations in the Union's trailer. (5) Another shooting incident occurred in the early morning of January 27, 1973, while no pickets were on duty. Four unidentified persons drove up to the aforemen- tioned picket trailer and inflicted substantial damage to it. The Employer's guard noticed the incident and reported it to the sheriff's office, but the sheriff's office was unable to identify the four attackers. (6) In January 1973, Lavalle Lee, a nonstriking driver, allegedly assaulted union adherent Robert Wentz. Several union adherents subdued Lee and then let him go. Wentz filed assault charges against Lee who posted bond and was awaiting trial at the time of the investigation. The Employer and nonstriking employees have filed complaints alleging damage to property and equipment by unknown persons. No arrests have been made as to these alleged incidents. It is apparent that the election was held in a general atmosphere of confusion, acts of violence, and threats of violence, such as may be expected to generate anxiety and fear of reprisal, and to render impossible a rational, uncoerced choice of a bargain- ing representatives As we stated previously herein, it is not material that fear and disorder may have been created by individual employees or nonemployees and that their conduct cannot probatively be charged either to the Employer or the Union; the ultimate fact is that such conditions existed and that a fair election was thereby rendered impossible.7 We do not agree with our dissenting colleague that since there was such "deplorable conduct" preceding the election that the only remedy is to order a new election. While, as we have previously stated, we are unable to determine from the record to which of the parties the "deplorable conduct" can be attributed, it is perfectly clear that the acts complained of were directed against the Union's organization campaign 6 Poinsett Lumber and Manufacturing Company, 116 NLRB 1732; The Falmouth Company, 114 NLRB 896 , Diamond State Poultry Co, Inc, 107 NLRB 3. r Diamond State Poultry Co, Inc, supra. WILLIS SHAW FROZEN EXPRESS, INC. in toto. We do not believe that in the circumstances of this case that the Union having been the victim of the "deplorable conduct" should be forced to a second election, except in the manner we have provided. In our opinion, to ignore the implications of such "deplorable acts" and to assure success to the perpetrators of such acts by merely ordering a second election undermines rather than supports the purpose of the Act. This Board has consistently taken the view that wrongdoers cannot be the beneficiaries to their wrongdoing irrespective of who the wrongdoers were. Accordingly, finding as we do that the election was held in an atmosphere not conducive to freedom of choice, we shall, in the event that the opening of the challenged ballots does not result in a determination favorable to the Union,8 set the election conducted between December 29, 1972, and February 9, 1973, aside and order a new election. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Regional Director for Region 26 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this Decision, Order, and Direction of Second Election, open and count the ballots of Tommy L. Baker, James F. Boling, Billy J. Goodman, Eddie Roso, Dale R. Taylor, Donald E. Thacker, Leo F. Sheehan, Francis C. Pianalto, Donald A. Oneal, Wylie L. Henry, Larry D. Henderson, Dennis R. Henderson, Bruce L. Hall, Arthur Dorey, Jr., Robert J. Gordon II, David E. Fletcher, Michael Della Rosa, Vernon W. Dalton, Lee L. Collins, Howard D. Wilhite, Thomas L. Whittle, Robert F. Wentz, William E. Tabor, Troy E. Six, Billy M. Greenlee, Archie B. Poplin, Bobby Nubbie, Gerald D. Meeks, Jerry A. Ledbetter, Jimmy R. Holmes, Edward G. Hoepfner, Garry M. Hodges, Vance L. Harp, Keith L. Greenlee, Donald R. Greenlee, Arthur D. Cornelison, Virgil W. Clark, and James R. Wentz, and prepare and cause to be served on the parties a revised tally of ballots, including therein the count of the above-mentioned ballots. In the event that the ballots of Charles L. Tillotson and Don Walters are sufficient in number to affect the results, as shown by the revised tally of ballots, the Regional Director is hereby ordered to conduct a hearing, for the purpose of receiving evidence to resolve the issues raised by the said challenges, 269 before a Hearing Officer to be designated by the said Regional Director. IT IS FURTHER ORDERED that the Hearing Officer designated for the purpose of conducting such hearing shall prepare and cause to be served on the parties a report containing resolutions of credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of the challenges. Within the time prescribed by the Board's Rules and Regulations, any party may file with the Board in Washington, D.C., eight copies of exceptions thereto. Immediately upon filing of such exceptions, the party filing the same shall serve a copy thereof on the other party and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the Hearing Officer. IT IS FURTHER ORDERED that the proceeding be remanded to the Regional Director for Region 26 for the purpose of arranging such hearing, if necessary, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof. In the event the Petitioner, either upon counting the 38 challenged ballots or upon resolution and/or counting of the two remaining ballots, has received a majority of the valid ballots cast, the Regional Director shall issue the appropriate certification in accordance with the Board's Rules and Regulations. However, in the event the revised tally of ballots shows that the Petitioner has not and cannot receive a majority of the valid ballots cast, the following Direction of Second Election shall be applicable. IT IS FURTHER ORDERED that the above-entitled matter be, and it hereby is, referred to the Regional Director for Region 26 for the purpose of conducting such investigation. [Direction of Second Election and Excelsior foot- note omitted from publication.] CHAIRMAN MILLER, dissenting: The majority finds, and I agree, that this election was held in an atmosphere of "confusion, acts of violence, and threats of violence" such as "to render impossible a rational, uncoerced choice" by the employees. I also agree that it is not possible to determine, on the record before us, to which party, if either, this deplorable conduct is to be attributed. Under such circumstances, a new election must be conducted, no matter how the tally of ballots may have come out in this clearly invalid election. I would so order. 8 We make this decision on the basis that the facts , as found, do not clearly define any culpability on the part of the Petitioner union