Avis Rent-A-Car System, Inc.

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Avis Rent-A-Car System, Inc. and Local Lodge 724, International Association of Machinists and Aerospace Workers, AFL-CIO, Petitioner. Case 4-RC-14839 24 June 1986 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON The National Labor Relations Board, by a three- member panel, has considered objections to an election held 22 October 1981 and the hearing offi- cer's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 40 for and 13 against the Petitioner, with 15 chal- lenged ballots,' an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and briefs,' and has decided to adopt the hearing officer's fmdings2 and recom- mendations only to the extent consistent with this Decision and Certification of Representative. The Employer rents motor vehicles at various locations throughout the United States, including several locations in Philadelphia, Pennsylvania. On 26 August 1981 the Petitioner filed a representation petition seeking certification as the exclusive bar- gaining representative of the Employer's shuttlers in Philadelphia. The shuttlers drive cars from the Employer's main facility in Philadelphia, located at Norwitch Drive, to the Employer's other Philadel- phia locations, and return cars from those locations to the Norwitch Drive facility. On an average day, the shuttlers drive through the main gate at the Norwitch Drive facility from 15 to 30 times. The Petitioner also represents the Employer's mechanics. Because the parties reached an impasse during negotiations for a new bargaining agreement covering the mechanics, the Petitioner struck the Employer on 18 September 1981, 1 day after the Employer and the Petitioner signed the Stipulated Election Agreement setting 22 October 1981 as the date an election would be held in the shuttler unit. The strike lasted until 2 November 1981, and only the mechanics, not the shuttlers, picketed the Em- ployer's Philadelphia locations. The Employer's i The Employer has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 3 The Employer has excepted to some of the hearing officer's credibil- ity findings The Board's established policy is not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Stretch-Tex Co, 118 NLRB 1359, 1361 (1957) We find no basis for reversing the findings election objections generally allege that, because of strike misconduct attributable to the Petitioner principally at the Norwitch Drive facility, a gener- al atmosphere of fear and reprisal was created that interfered with employee free choice in the elec- tion. When the strike commenced, the Petitioner im- mediately set up a picket line at the Employer's Norwitch -Drive facility. The pickets at the Nor- witch Drive facility engaged in the following acts of picket line misconduct that we attribute to the Petitioner.3 On 22 September and again on 24 Sep- 0 We disagree with the hearing officer's conclusions that the Petitioner was not responsible for the misconduct of the unidentified picket, for the damage done to the cars of two employees who worked as shuttlers during the strike, and for the scattering of roofing nails on several days during the strike When a union authorizes a picket line , "it is required to retain control over the picketing. If a union is unwilling or unable to take the necessary steps to control its pickets, it must bear the responsibility for their misconduct " Iron Workers Local 455 (Stokvis Multi-Ton), 243 NLRB 340, 343 (1979) Accord: Hospital Employees District 1199 (Frances Schervier Home), 245 NLRB 800, 804 (1979), Broadway Hospital, 244 NLRB 341, 349 (1979) The hearing officer erred in finding that the Peti- tioner was not responsible for the misconduct of the unidentified picket because the Employer failed to identify the picket or show that he acted as the Petitioner's agent or with the Petitioner's approval A union is re- sponsible for the acts of its authorized pickets even if not specifically au- thorized or indeed specifically forbidden. Nor is it necessary to establish the identity of the picket engaging in the misconduct Hospital Employees District 1199, supra, 245 NLRB at 804-805; Meat Cutters Local 248 (Mil- waukee Meat Packers), 222 NLRB 1023, 1034 (1976), enfd mem 571 F 2d 587 (7th Cir 1978) We find the Union had an affirmative obligation to control the actions of the unidentified picket, and cannot escape responsi- bility by simply contending that neither Business Agent Greg McAnally nor picket captain John Martin was present when the misconduct oc- curred There is also sufficient evidence to infer that the pickets scattered the roofing nails and damaged the cars of the two persons working as shut- tlers during the strike . Leonard Bagby, a guard, testified that he saw a man, who in the past had worn picket signs , scatter nails on the facility's driveway on one occasion This testimony, coupled with evidence dem- onstrating that roofing nails were scattered at the facility near the picket line on 3 consecutive days-20, 21, and 22 October 1981-and the in- crease in the number of flat tires fixed during the stake-75 repairs as compared to 9 in the previous 2-month period-makes it reasonable to infer that the Petitioner knew the pickets were scattering nails but failed to take more effective steps to prevent this misconduct As to the damage to the cars, Robert Quilles, a shuttler during the strike, testified that on one occasion when he parked his car outside the facility during the strike, two of the tires were slashed and one had a puncture hole in it. Beverly Lightfoot, a shuttler during the strike, also testified that there was a "small dent, scratch" on her car's left door, and the air was let out of the left rear tire on the one occasion she parked outside the facility during the strike. (The hearing officer erroneously stated Lightfoot's car was parked inside on this occasion.) We infer that the Petitioner's pickets were responsible for this misconduct because neither Quilles' nor Light- foot's car was damaged on other occasions when each parked their car inside the facility during the strike See Broadway Hospital, supra, 244 NLRB at 346 (Howle incident), Dover Corp, 211 NLRB 955, 958 (1974), enfd as modified 535 F 2d 1205 (10th Cir 1976), cert. denied 429 U.S. 978 (1976) (Jones incident). Contrary to his colleagues, Member Babson agrees with the hearing of- ficer that the Union can only be held responsible for the two September mcidents pertaining to the alleged blocking of ingress to and egress from to the Company's facility An individual can be held to be a union agent if the union instigated, authorized, solicited, ratified, condoned, or adopt- ed the individual's actions or statements or clothed the individual with apparent authority to act on behalf of the union Kitchen Fresh, Inc Y. NLRB, 716 F 2d 351, 355 (6th Cir 1983) Member Babson notes that in authorized strikes unions may be held responsible for the acts of author- Continued 280 NLRB No. 60 AVIS RENT-A-CAR SYSTEM 581 tember 1981 pickets blocked a gasoline truck from entering the facility to make a delivery. During the first week of the strike, an unidentified picket de- layed cars entering the facility for up to 5 minutes, slapped the rear fender of those cars with his hand, and put picket signs on the windows of a rental car that stalled on the main driveway. All of these ac- tions by the unidentified picket took place within the space of 3 hours. On several other occasions, pickets either slapped or spit next to cars that crossed the picket line and entered the facility. In two instances, employees who worked as shuttlers during the strike had some damage done to their cars while parked outside that facility. Finally, about 4 days during the strike, including the elec- tion day, employer officials found roofing nails on the driveway or in other areas of the facility.4 We agree with the hearing officer that, because the Petitioner was responsible for the misconduct, the test to be applied is whether the conduct "rea- sonably tends to interfere with the employees' free and uncoerced choice in the election." Baja's Place, 268 NLRB 868 (1984). Accord: Zeiglers Refuse Col- lectors v. NLRB, 639 F.2d 1000, 1005 (3d Cir. 1981). In deciding whether the employees could freely and fairly exercise their choice in the elec- tion, we evaluate the following factors: (1) the number of the incidents of misconduct; (2) the se- verity of the incidents and whether they were likely to cause fear among the employees in the bargaining unit; (3) the number of employees in the bargaining unit subjected to the misconduct; (4) the proximity of the misconduct to the election date; tzed pickets who act within their scope of employment as pickets, Long- shoremen ILWU Local 6 (Sunset Line), 79 NLRB 1487, 1509 (1948), Teamsters Local 327 (Coca-Cola Bottling), 184 NLRB 84, 94 (1970), and that the identity of authorized picketers need not be established, Hospital Employees District 1199 (Frances Schervier Home), 254 NLRB at 805 He also notes that conduct by unknown perpetrators will not be attributed to a union simply because it occurred in the vicinity of the union's picket line Sunset Line, supra Applying these principles, Member Babson finds that the conduct engaged in by the unidentified picket and by unknown perpetrators has not been shown to be attributable to the Union In his view, those cases relied on by his colleagues, for finding the additional conduct attributable to the union involved facts, not present here, show- ing that the union was aware of and did not disavow the conduct, or which otherwise supported the conclusion that the conduct was attributa- ble to the union. Assuming arguendo, however, that all of the conduct here is attributable to the Union , as found by his colleagues, Member Babson agrees with Member Dennis that the conduct does not rise to the level of objectionable conduct which would warrant setting aside the election 4 Absent exceptions, we adopt pro forma the hearing officer's findings that the Petitioner's pickets (1) did not block the entrance to the Employ- er's 19th & Market Street location on 24 and 25 September 1981, (2) did not prevent a tow truck from towing a disabled rental car into the Nor- witch Drive facility on 18 September 1981, (3) did not threaten employee Ernest Mernweather or any other employee with bodily harm or prevent employees from working during the strike, (4) did not threaten service agent Tyson Drummond with bodily harm at the 19th & Market Street location during the second week of the strike, and (5) did not threaten the Employer's customers with bodily harm or property damage during the strike. (5) the degree of persistence of the misconduct in the minds of the bargaining unit employees; (6) the extent of dissemination of the misconduct among the bargaining unit employees; (7) the effect, if any, of misconduct by the opposing party in canceling out the effect of the original misconduct; (8) the closeness of the final vote; and (9) the degree to which the misconduct can be attributed to the union. Chicago Metallic Corp., 273 NLRB 1677 (1985); Westwood Horizons Hotel, 270 NLRB 802, 803 (1984); YKK (U.S.A.) Inc., 269 NLRB 82, 83- 84 (1984). Accord: NLRB v. L & J Equipment Co., 745 F.2d 224, 236 fn. 17 (3d Cir. 1984) supplemen- tal decision 278 NLRB 385 (1986); Zeiglers Refuse Collectors v. NLRB, supra, 639 F.2d at 1005. After evaluating all these factors, we find that the Petitioner's misconduct, when considered cu- mulatively, did not reasonably tend to interfere with the shuttlers' free and uncoerced choice in the election for the following reasons. Although the strike lasted about 6 weeks, there were very few incidents of misconduct and those that did occur were relatively mild, were not di- rected at the shuttlers, and were limited for the most part to the first week of the strike. Much of the misconduct of the first week-the blocking of the two gasoline delivery trucks and the miscon- duct of the unidentified picket-involved impeded ingress to the Norwitch Drive facility and oc- curred because picket captain John Martin errone- ously believed the pickets had a legal right to block ingress unless enjoined by an appropriate court. When the Employer obtained a temporary restraining order against this conduct on 24 Sep- tember 1981 and Martin learned his view of the law was wrong, the blocking of ingress and egress ceased.5 Employees, including shuttlers not honor- ing the picket line, crossed the picket line daily with no problem, other than that the pickets occa- sionally "took their time" crossing the main drive- way causing delays in ingress or egress of "a couple of minutes." Nor do we consider the other acts of misconduct occurring after the first week-occasional spitting next to or slapping cars crossing the picket line; two instances of property damage done to the per- sonal cars of employees crossing the picket line; x The hearing officer found that a picket raised a fiery piece of wood about the time the gasoline truck attempted to enter the Norwitch Drive facility Security Operations Manager Judy Hopson, believing that he might hurl it at the gasoline truck , told him to put the piece of wood down and the picket complied We cannot, however, from Hopson's tes- timony, infer the picket intended to hurl the fiery piece of wood at the truck Strike Coordinator Paul Vitrano, who was in the cab of the gaso- line truck, saw no such thing Consequently, we reject the dissent's infer- ence that the picket "wav[ed] a fiery torch in the direction of a loaded gasoline delivery truck " 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and some nail scattering-as creating an atmos- phere of fear and coercion that interfered with the shuttlers' free choice in the election. The spitting next to and slapping of cars caused no property damage, and those instances of actual property damage that occurred during the strike-a small scratch on one employee's car and damaged tires on another employee's car-were isolated. The nails that were scattered at the facility were swept up immediately when discovered, and even the Employer did not view this misconduct as serious. On the one occasion when a guard saw a person scatter nails, the Employer took no action against that person other than to photograph him with other pickets and the guard, who posed with the broom he used to sweep up the nails. Moreover, we agree with the hearing officer that the Employer failed to demonstrate that the shut- tlers were present when these incidents occurred or that knowledge of these incidents was dissemi- nated among the shuttlers. The Employer did not demonstrate that any shuttler witnessed any of the picket line misconduct that occurred in this case.6 Only two shuttlers testified that they had heard of any of the incidents of picket line misconduct-Lee Goldwire and Warren Turpin had heard of the blocking of the gasoline delivery trucks and Gold- wire had heard that an employee had driven his car over nails scattered at the facility, causing a flat tire. Because the election was not close and be- cause there is no evidence from which we can infer that a substantial number of shuttlers knew of or were affected by the relatively minor picket line misconduct, 7 we agree with the hearing officer 6 Although nails were scattered at the Norwitch Drive facility on elec- tion day, the only shuttlers testifying at the hearing-Joseph Laughing- house, Lee Goldwire, and Warren Turpm-denied seeing any nails when they voted at the facility that day. 7 We disagree with the Employer that we can infer that the miscon- duct was disseminated and had an effect on the election because (1) damage appraiser John Bankhead testified that shuttlers were "standing around" the picket line 50 percent of the time; and (2 ) less than 50 per- cent of the shuttlers actually voted in the election . Bankhead testified he "never saw a shuttler on the picket line" and that, while he thought shut- tiers were present about 50 percent of the time, he qualified his testimony by stating "[t]here were shuttlers standing . on the outside of the gate around their own personal automobiles. Quite a few times." If it were true that shuttlers were present 50 percent of the time, the Employer should have been able to produce at least one shuttler who personally observed some of the picket line misconduct . The Employer failed to do so We find Bankhead's testimony too speculative to be entitled to any weight Nor can we infer dissemination from the alleged fact that only 50 per- cent of the shuttlers actually voted in the election . While correctly noting that 110 names were included on the Employer's voter eligibility list and that only 68 shuttlers voted, the Employer failed to demonstrate that those shuttlers who did not vote knew of the picket line misconduct and that the reasonable tendency of this misconduct was to deter employees from voting in the election. In any event, Daniel Isaac, the immediate su- pervisor of the shuttlers , testified, "I can't agree with that 100 number because we don't have . 100 shuttlers." The Employer actually em- ploys "I'd say somewhere in the neighborhood of 75 to 80 [shuttlers]." that the Employer's election objections should be overruled8 and that the Petitioner should be certi- fied as the collective-bargaining representative of the Employer's shuttlers. See Bauer Welding, 268 NLRB 1416, 1421 (1984), enfd. 758 F.2d 308 (8th Cir. 1985); NLRB v. Southern Paper Box Co., 506 F.2d 581, 585 (8th Cir. 1974). We disagree with the dissent's conclusion that the Petitioner's picket line misconduct "had a rea- sonable tendency-indeed, in this case, almost a self-evident tendency-to interfere with the [shut- tlers'] free choice in the election" for the following reasons. First, we find no reason or even an explanation why the dissent reverses one of the hearing offi- cer's credibility resolutions. In describing the 22 September gasoline delivery truck blocking inci- dent, the dissent states that "the Petitioner's picket line captain, John Martin, threatened the Employ- er's pipeline manager, Ray Groses, that `they would blow the truck up first before it got through the gate."' Two employer witnesses-strike coordi- nator Paul Vitrano and Pipeline Manager Ray Groses-and one Petitioner witness-strike captain John Martin-testified about this incident. Al- though Groses testified, contrary to Martin, that Martin made the alleged threat, the hearing officer only credited the testimony of Vitrano . Because Vitrano did not testify that Martin had threatened the driver of the gasoline truck, there is no credible record evidence the threat was made. Second, the dissent errs by suggesting that we are willing to tolerate the picket line misconduct that occurred in this case. The issue before us is not whether the Petitioner violated the Act engag- ing in the picket line misconduct, but whether the misconduct interfered with the shuttlers' free choice in the election. The problem in this case is that of the 68 shuttlers voting in the election, there is no evidence any shuttler witnessed any instance Assuming the Employer has 80 shuttlers, 85 percent (68/80) of them voted in the election. 9 The Employer filed four objections to the election We have dis- cussed Objection 1, alleging that the Petitioner 's picket line misconduct interfered with the election. Member Dennis agrees with the hearing officer in overruling that part of Objection I alleging that the Petitioner threatened the shuttlers when picket Bob Fitzpatrick wrote down the license tag numbers of cars cross- ing the picket line. Although dispatcher Valerie Giddings, strike coordi- nator Paul Vitrano, and Pipeline Manager Raymond Groses testified seeing Fitzpatrick writing something on a pad when cars crossed the picket line, none of them knew what he wrote She cannot infer that Fitzpatrick was attempting to gather information about those employees crossing the picket line for possible later retaliation because Vitrano testi- fied that Fitzpatrick was interested only in "[o]ur vehicles" driven by "managers from out of town." Member Babson finds that Fitzpatrick's conduct was not objectionable under all the circumstances We also agree with the hearing officer that Objections 2, 3, and 4 should be overruled for the reasons stated in her report AVIS RENT-A-CAR SYSTEM 583 of picket line misconduct; testimony revealed only 2 shuttlers had heard of the blocking of the gaso- line delivery trucks, and only 1 had heard that one employee had driven his car over nails scattered at the facility." Despite the virtual absence of evi- dence of dissemination of the picket line miscon- duct among the shuttlers, the dissent would set aside the election because the nail scattering was "peculiarly calculated to come to the attention of shuttlers whose duties consisted of ferrying the Employer's vehicles" and because it is "safe" to assume that the two employees whose cars were damaged informed other employees of the damage done to their cars. The dissent's assumptions are er- roneous. The dissent assumes that all or almost all the shuttlers worked during the strike and would have observed or learned of the picket line misconduct. In fact, only 14 shuttlers crossed the picket line at the Norwitch Drive facility sometime during the strike, and only 3 to 6 of them worked at that facil- ity on a daily basis during the strike. Those shut- tlers, substitute shuttlers, and employees, who worked at the facility during the strike and testified at the hearing, admitted that they crossed the picket line daily without incident, except that occa- sionally the pickets "took their time" moving away from the entrance and they had to watch out for nails on the driveway. Among those testifying were Robert Quilles and Moses Ferguson, whose cars were damaged during the strike. Quilles testi- fied that he worked 5 days a week during the strike as a shuttler, that he had no trouble crossing the picket line except for watching out for nails, and that security personnel immediately swept up any nails seen at the facility. The cars he shuttled were never blocked and he was never threatened. Ferguson testified that he crossed the picket line daily, that he was never threatened, that he was never asked not to cross the picket line, and that the only problem he had was watching out for nails in the driveway.10 In fact, Fleet Distribution Manager Laura Fels had two meetings with the shuttlers during the strike-18 September and 29 September-and those shuttlers attending testified that they had no difficulty crossing the picket line. 9 To support its conclusion that the picket line misconduct was "di- rected at the shuttlers," the dissent states that pickets slashed the tires on two shuttlers ' cars and scratched or dented the car of another shuttler The only employee who had his tires slashed was Robert Quilles, a secu- rity man Moses Ferguson, a lead agent, picked up some nails in the rear tires of his car while leaving the facility around 1 October, and Beverly Lightfoot, a body shop clerk, noticed a small dent or scratch on her left car door and that the air was let out of the left rear tire around 11 Octo- ber None of these employees was a shuttler eligible to vote in the elec- tion, although Quilles and Lightfoot worked as shuttlers during the strike 10 Beverly Lightfoot , whose car was also damaged during the strike, was not asked about her experiences in crossing the picket line Moreover, while the temporary restraining order issued against the Petitioner at the time of the 24 September gasoline delivery truck blocking inci- dent allowed only six pickets at the Norwitch Drive facility, this restriction was lifted after a hearing on the preliminary injunction. There is no evidence of any picket being arrested, or of any violation of the temporary restraining order or pre- liminary injunction and, in the one instance when a picket was seen dropping nails, the Employer simply took the picket's picture with a Wells Fargo guard standing next to him holding a broom.' 1 In these circumstances, we cannot agree with the dis- sent that we can assume dissemination among the shuttlers of the picket line misconduct and then infer that the misconduct interfered with the shut- tlers' free choice in the election. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Local Lodge 724, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, and that it is the exclusive collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time shuttlers employed by the Employer at its facility at 6615 Norwitch Drive Philadelphia, Pennsylva- nia; excluding all other employees, rental agents, service agents, mechanics, office cleri- cal and professional employees, guards, watch- men, and supervisors as defined in the Act. CHAIRMAN DOTSON, dissenting in part. Contrary to Member Babson, I agree with Member Dennis, for the reasons set forth in foot- note 2 of the majority opinion, that the Petitioner was responsible for the misconduct of the unidenti- fied picket, for the damage done to the cars of two employees who worked as shuttlers during the strike, and for the scattering of roofing nails on several days during the strike. However, contrary to Members Dennis and Babson, I find that the Pe- titioner's picket line misconduct undermined the conditions necessary for a free and fair election. I find merit in the Employer's Objection 1 and I would set aside the election on that basis.' 11 Leonard Bagby, a Wells Fargo guard assigned to the Norwitch Drive facility during the strike, testified that only once did he see a picket dropping nails Bagby reported the incident to Security Operations Manager Judy Hopson and they decided to take his picture When com- pany personnel asked , "Anybody want to take pictures7 " all the pickets said yes Bagby, holding a broom used to sweep up nails, posed in the picture with the pickets 1 I agree with my colleagues to overrule Objections 2, 3, and 4 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Petitioner seeks to represent a unit of the Employer's shuttlers (employees who deliver and return the Employer's rental cars to and from the Employer's fleet storage premises and various cus- tomer rental locations). During the time material herein, the Petitioner already represented a unit of the Employer's mechanics. The collective-bargain- ing agreement covering the mechanics expired 16 September 1981 (all dates are 1981). The instant Stipulation for Certification Upon Consent Election in the shuttlers' unit was approved by the Regional Director 17 September. The mechanics went on strike starting 18 September. They picketed at the entrance to the Employer's premises around the clock through the day of the election, 22 October. There was no picketing during the voting hours on 22 October, but picketing resumed thereafter, final- ly ending on 2 November. This picketing was ac- companied by egregious misconduct which, in my view, most assuredly had a tendency to intimidate the shuttlers and interfere with their ability to make a free and uncoerced choice of whether to be represented by the Petitioner. About a month before the election, the Petition- er's pickets blocked a gasoline truck from making delivery to the Employer. At that time, the Peti- tioner's picket line captain, John Martin, threatened the Employer's pipeline manager, Ray Groses, that "they would blow the truck up first before it got through the gate."2 Two days later, the Petition- er's pickets again blocked a gasoline truck (loaded with 8000 gallons of fuel) from making a delivery to the Employer. The Petitioner's strike captain told the Employer's security operations manager Judy Hopson that the only way the Employer would be able to get the truck through the pickets would be if the Employer obtained an injunction. Later that day, the Employer obtained a temporary restraining order. Hopson, accompanied by two police officers, was present while a process server read the temporary restraining order to the pickets, and served each picket with a copy of the order. Although the pickets reacted with obvious dissatis- faction to this latest turn of events, the gasoline truck eventually gained entry to the Employer's premises under the protection of two police offi- cers. However, one of the pickets raised a fiery 2 Contrary to the view of my colleagues, Groses' testimony in this regard is not controverted by the general testimony of Manager Paul Vi- trano about this blockage of ingress incident, or by the specific testimony of Vitrano about what he told the gasoline truckdnver . Vitrano himself never spoke to Martin on this occasion , and Vitrano was in no position to overhear Martin's threat to Groses because , according to Vitrano, "I was, you know, too far away and plus in the beginning I was inside " Although Martin denied threatening to blow up the truck, the hearing officer did not credit (or even mention) Martin's denial, but instead ex- pressly discredited Martin's testimony that the gasoline truck struck one of the pickets piece of wood and appeared ready to hurl it at the truck until dissuaded from doing so by Hopson. On another day, as Hopson was entering the Employer's premises, one of the Petitioner's pickets yelled at her through her car window "scab man- ager's here" and then slammed her rear fender as she went through the picket line. Also, this picket stopped other cars from entering the Employer's premises, making them wait almost 5 minutes before allowing them in. Even then this picket struck the cars as they came through the gate, spat on them, and made lewd remarks to female man- agement personnel who were shuttling cars. When one car stalled in front of the gate, this picket placed picket signs on the car and removed the keys from the ignition; a duplicate set of keys had to be obtained. On 24 September, shortly after the start of the Petitioner's strike, and again on the day of the elec- tion (22 October) and on the 2 days preceding the election, the Petitioner's pickets scattered roofing nails on the driveway entrance to the Employer's premises, on the Employer's rear lot, and along the gate inside the fence. Some of the nails were insert- ed into squares of roofing paper to ensure that they remained upright. During the 6-week preelection period there was an 833-percent increase in flat tires on cars on the Employer's lot compared to the immediately preceding 2-month period: an in- crease from 9 to 75 flat tires. Also, the Petitioner's pickets slashed the tires of one employee who worked as a shuttler during the strike, and deflated a tire and dented the car of an- other such employee. I believe that the Petitioner's misconduct-its threat to blow up a gasoline truck in order to keep it from delivering fuel to the Employer; its (per- haps symbolic) waving of a fiery torch in the direc- tion of a loaded gasoline delivery truck; its inflic- tion of verbal abuse on entrants to the Employer's premises, and physical abuse to their automobiles; its wanton scattering of roofing nails in front of and within the Employer's property (with entirely foreseeable and intended resulting property damage); and its intentional infliction of property damage to the cars of two employees who worked as shuttlers during the strike-effectively poisoned the election atmosphere. The message to the shut- tlers was loud and clear: do not oppose the Peti- tioner. I simply cannot agree with-indeed, I cannot understand-my colleagues' willingness to accept this sort of violent and destructive conduct on the part of the Petitioner during the critical period leading up to the election, and their willing- ness to find that it did not interfere with the condi- tions necessary for a fair election. AVIS RENT-A-CAR SYSTEM 585 In overruling the Employer's objections in this regard, my colleagues find that the Petitioner's mis- conduct did not interfere with employees' free choice in the election because there were "very few incidents of misconduct ... [which were] rel- atively mild, were not directed at the shuttlers, and were limited for the most part to the first week of the strike." (Emphasis added.) I do not agree that the Petitioner's blocking gasoline delivery trucks, threatening to blow one of them up, and waving a fiery torch at another are "relatively mild." I also do not agree that the Petitioner's slashing, punctur- ing, and deflating the tires on two shuttlers' cars and scratching or denting one of them was "not di- rected at the shuttlers." Nor, finally, do I agree that the Petitioner's scattering and placing roofing nails on the Employer's driveway and rear lot on the day of the election and the 2 days beforehand was "limited for the most part to the first week of the strike" (i.e., a month before the election).s My colleagues also rely on the absence of direct evidence that any of the shuttlers had actually wit- nessed any of these incidents of Petitioner miscon- duct. Also, my colleagues apparently rely on the hearing officer's findings that "no shuttler testified that the incidents that transpired during the strike affected his willingness to vote" and that "there was no record evidence that the employees consid- ered [these incidents] or cared."4 Thus, my col- leagues rely on an absence of a showing of actual coercion or intimidation of unit employees. How- ever, it is well established that the subjective reac- tions of employees are irrelevant to the question of whether there was objectionable conduct;5 the cor- rect standard is an objective test: whether the al- leged objectionable conduct has a reasonable tend- ency to interfere with the employees' freedom of choice in the election.6 Finally, my colleagues find no basis for inferring that the Petitioner's picket line misconduct became known to "a substantial number" of shuttlers. Not surprisingly, I disagree in this respect also. First, as the hearing officer herself notes, the shuttlers who testified stated that they had heard ' 1 especially disagree with my colleagues' characterization of this latter conduct, which caused a more than eightfold increase in tire damage, as merely "some nail scattering " I note further that flat tires- 75 of them as the majority states-were an item peculiarly calculated to come to the attention of shuttlers whose duties consisted of ferrying the Employer's vehicles ' Specifically with regard to the roofing nails, the hearing officer found that "a number of people observed the nails but there was no evidence presented that the presence of the nails frightened the potential voters " S See Emerson Electric Co, 247 NLRB 1365, 1370 (1980), enfd 649 F 2d 589 (8th Cir 1981), Wayne Metal Co , 246 NLRB 392 (1979) See also Manark Boat Co., 276 NLRB 1143 fn 2 (1985) 6 See Weyerhaeuser Co, 247 NLRB 978 (1980), Baba's Place, 268 NLRB 868 (1984) (objective test) about the gasoline truck incident. Second, as seen in footnote 4 above, the scattered roofing nails were a matter of common knowledge and liable to be of concern to shuttlers during the course of their driving duties. Third, it is safe to assume that at the very least the two employees whose cars were damaged by the Petitioner's pickets had knowledge of those incidents. Moreover, it is equally safe to infer that they informed other em- ployees of the damage done to their cars. Thus, direct evidence from the record itself establishes that numerous employees had actual knowledge of the Petitioner's picket line misconduct-some of which was aimed specifically at the shuttlers them- selves, and some of which was targeted more gen- erally at anyone perceived by the Petitioner to be working with or for the Employer during the Peti- tioner's strike. Beyond this evidence of actual knowledge of the Petitioner's picket line miscon- duct, I believe it is reasonable to infer that union misconduct of this type during the critical preelec- tion period would become known to unit employ- ees,7 particularly because much of it occurred in broad daylight at the Employer's premises. The majority's strenuous effort to explain away the effect of this "broad daylight" violence on the ground that only 14 shuttlers ever crossed the picket line will not wash. My colleagues' use of the term "relatively mild" to describe the violent behavior exhibited in this record raises serious legal and policy consider- ations. Presumably, violence does not become so- cially or legally permissible simply because it occurs in a labor context. I had thought this Board had made this proposition clear in Clear Pine Mouldings, 268 NLRB 1044 (1984). There is no doubt that the courts have conveyed this message, not only about violence, but about coercive language. See Associated Groceries of New England v. NLRB, 562 F.2d 1333 (1st Cir. 1977); NLRB x W. C. McQuaide, Inc., 552 F.2d 519 (3d Cir. 1977); and Operating Engineers Local 542 v. NLRB, 328 F.2d 850 (3d Cir. 1964), cert. denied 379 U.S. 826 (1964). This Agency is charged by Congress with policy-making functions both in unfair labor practice and representation areas, func- tions explicitly recognized by the United States Su- preme Court. See NLRB v. City Disposal Systems, 465 U.S. 822 (1984), and NLRB v. Action Automo- tive, 105 S.Ct. 984 (1985). If violence is to be pre- vented and discouraged, this policy-making ° See, e.g, Broadway Hospital, 244 NLRB 341, 346 (1979) ("Nor was it necessary in every instance that employees witnessed these acts of vio- lence or intimidation , because they took place during the Union's strike against the hospital and under circumstances wherein the employees might reasonably be expected to become aware of the incidents ") 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Agency must set norms . These norms must encom- pass a policy that creates costs for violators. While I do not believe that this Agency acting alone can eliminate violence in labor affairs, "Such conduct, however, does not go unregulated by society .. . it is not for the Board to set less stringent standards but to observe those already in existence." NLRB v. A. Duie Pyle, Inc., 730 F.2d 119, 124 (3d Cir. 1984). My colleagues, by their decision in this case, establish no norms. Indeed, as indicated, they re- treat from ones previously established. There can be no doubt that had this Employer, in another procedural context, engaged in similar misconduct, my colleagues would undoubtedly have stood ready to impose a bargaining order rather than permitting an election won by the Em- ployer to stand. Violence is not even necessary. Verbal conduct and nonviolent behavior will sus- tain a bargaining remedy . Quality Aluminum Prod- ucts, 278 NLRB 338 (1986). This double standard, which imposes a remedy for verbal or nonviolent behavior of one side, while tolerating explicit vio- lence by the other, has more than anything else contributed to the view that the Board is simply unfair. I subscribed to the decision in Quality Alu- minum . I cannot subscribe to a contrary holding in this case. This case and Quality Aluminum are mirror images of one another save only in the criti- cal facts that the Petitioner here engaged in vio- lence while the respondent in Quality Aluminum employed verbal or nonviolent methods. An employer's economic power to affect em- ployees' livelihood lends weight to its words in dealing with those employees. See NLRB v Gissel Packing Co., 395 U.S. 575 (1969). This Board has frequently taken account of that fact. It ought also to take account of the correlative fact that vio- lence, employed even by a party who lacks imme- diate power to affect employees' livelihood, lends weight to the known wishes of that party. In light of the above considerations, I find that the Petitioner's picket line misconduct had a rea- sonable tendency-indeed, in this case, almost a self-evident tendency-to interfere with the em- ployees' free choice in the election. Accordingly, I would set the election aside.