Willis Shaw Frozen Express, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1974

209 N.L.R.B. 267 (N.L.R.B. 1974)

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