Fraenkel Wholesale Furniture Company, Inc.

FRAENKEL WHOLESALE FURNITURE Fraenkel Wholesale Furniture Company, Inc and Furniture Workers Division, Local 282, Interna- tional Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, AFL-CIO Case 26-RC-7008 December 30, 1988 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS The National Labor Relations Board, by a three member panel, has considered objections to an election held February 12, 1988, and the hearing officer's report recommending disposition of them The election was conducted pursuant to a Stipulat ed Election Agreement The revised tally of ballots shows 49 for and 48 against the Petitioner, with no challenged ballots i The Board has reviewed the record in light of the exceptions and brief, has adopted the hearing officer's findingsz and recommendations, and finds that a Certification of Representative should be issued We agree with the hearing officer, for the fol- lowing reasons, that the Employer's Objections 8, 9, and 10 relating to the conduct of Union Agents Geraldine Crutcher and James Franklin be over- ruled It is undisputed that Crutcher and Franklin are agents of the Union On the afternoon of Feb- ruary 10, 1988, they were engaged in an incident with employee Earnie Williams in which Williams expressed antiunion views to them and then pulled a pistol from his jacket and threatened to use it on Crutcher Later that day, Crutcher went to the police department and swore out a complaint against Williams The following evening Williams was arrested at his home pursuant to a warrant issued on that complaint He was released the next ' The original tally of ballots showed 48 votes for and 40 votes against the Petitioner with 9 challenged ballots On February 19 1988 both the Petitioner and the Employer filed timely objections to conduct affecting the results of the election On July 22 1988 the Board issued a Decision and Order directing that the nine challenged ballots be opened and counted The Board further directed that if the revised tally of ballots disclosed that the Petitioner received a majority of the valid ballots the Petitioner be allowed to withdraw its Objection 4 and that the Employ er s Objections 8 9 and 10 be decided on the basis of record testimony A hearing was held on August 22 1988 to receive evidence on Employ er s Objections 8 9 and 10 The hearing officer issued his recommenda bons on September 20 1988 8 The Employer has excepted to some of the hearing officer s credibil ity findings The Board s established policy is not to overrule a heanng officers 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 In adopting the heanng officers recommendation to overrule the ob jections we do not rely on the hearing officers speculation about what Williams would have testified to concerning his conversation with em ployee Black had he been recalled 241 morning and returned to work where employees taunted him with chants of "jailbird " He voted in the election that afternoon The hearing officer found, and we agree, that contrary to the Employer's contention, Franklin and Crutcher did not cause Williams to be arrested because he did not support the Union or to inter fere with or prevent Williams from voting in the election The hearing officer then went on to deter- mine whether the arrest, regardless of the fact that it was legally caused by Williams' assault on Crutcher, was objectionable In resolving this issue the hearing officer used the "third party test" (i e , whether the conduct created an atmosphere of fear and reprisal rendering a free election impossible)3 and determined that the arrest did not create such an atmosphere The Employer excepts, arguing that the hearing officer applied the wrong standard in analyzing the incident because the conduct of union agents and not that of third parties is at issue here We find merit in this exception, but neverthe less conclude that even under the standard for con- duct of union agents, the Employer's objections must be overruled The correct standard to be applied is whether the conduct reasonably tends to interfere with the employees' free and uncoerced choice 4 It is clear that Crutcher and Franklin caused Williams to be arrested because he threatened them with a gun Even though the news of the incident was wide- spread and not all the employees believed that Wil- liams had pulled a gun, all employees were aware that Williams' arrest was due to the gun incident Indeed, the brandishing of a gun is an act that em ployees would reasonably expect to be reported to the police There is no allegation or evidence that the Union threatened to cause or caused any other bargaining unit employees to be arrested In sum, the union agents' actions were perceived, and could only reasonably be perceived, as directed uniquely to the gun incident It is, therefore, un- likely that the employees were coerced in their election choice out of fear of being arrested Ap plying the proper standard to facts at hand, we find that the union agents' conduct was not objection- able and thus we overrule the Employer's objec- tions and order that a Certification of Representa tive issue CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal lots have been cast for Furniture Workers Division, 3 Diamond State Poultry Co 107 NLRB 3 6 (1953) 4 Pepsi Cola Bottling Co 289 NLRB 736 (1988) 292 NLRB No 35 242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local 282, International Union of Electronic, Elec- trical, Salaried, Machine and Furniture Workers, AFL-CIO and that it is the exclusive collective bargaining representative of the employees in the following appropriate unit All production, warehouse, and maintenance employees including truck drivers , employed by Fraenkel Wholesale Furniture Co, Inc d/b/a Fraenkel Bedding Company and Fraen- kel Wholesale Furniture Co at its Memphis, Tennessee, locations, who were employed during the payroll period ending January 1, 1988, excluding all office clerical, watchmen, guards, foremen, and supervisors as defined in the Act