Al Long, Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1968

173 N.L.R.B. 447 (N.L.R.B. 1968)

AL LONG, INC. 447
Al Long, Inc. and Automotive Salesmen ' s Asso-
ciation , affiliated with Seafarers International
Union of North America , AFL-CIO, Petitioner.
Case 7-RC-8755
October 29, 1968
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Pursuant to a Stipulation for Certification upon
Consent Election, approved February 16, 1968, an
election by secret ballot was conducted in the
above-entitled proceeding on February 28, 1968,
under the direction and supervision of the Regional
Director for Region 7. Upon the conclusion of the
election, a tally of ballots was furnished the parties, in
accordance with the National Labor Relations Board
Rules and Regulations and Statements of Procedure,
Series 8, as amended.
The tally of ballots shows that there were approxi-
mately 13 eligible voters and that 13 ballots were
cast, of which 7 were for the Petitioner, 1 was against
the Petitioner, and 5 were challenged.
On February 29, 1968, the Employer filed timely
objections to conduct affecting the results of the
election. The Regional Director caused an investiga-
tion of the objections to be made and, thereafter, on
April 12, 1968, issued a decision thereon, in which he
concluded that the objections raised substantial and
material factual issues involving the necessity of
credibility resolutions. Accordingly, he ordered that a
hearing be held to resolve the issues raised by the
objections. A Notice of Hearing was issued and served
upon the parties. It was further ordered that the
Hearing Officer designated to conduct such a hearing
should prepare and cause to be served on the parties a
report containing resolutions of credibility of wit-
nesses, findings of fact, and recommendations to the
Board concerning disposition of the issues involved.
Pursuant to said Notice, a hearing was held on
April 26, 29, and 30, 1968, before Hearing Officer
David L. Murphy, Jr. All parties participated and were
given full opportunity to examine and cross-examine
witnesses, and to introduce evidence bearing on the
issues. On June 13, 1968, the Hearing Officer issued
and duly served upon the parties his report, in which
he recommended that the objections be overruled in
their entirety and that a Certification of Representa-
tives be issued to the Petitioner. Thereafter, the
Employer filed exceptions and a supporting brief, and
the Petitioner filed a brief in support of the Hearing
Officer's Report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its powers in connection with this case
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 National Labor Relations Act, to
assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that all new
and used car and truck salesmen employed by the
Employer at its Warren, Michigan operations, but
excluding office clerical employees, guards and super-
visors as defined in the Act, and all other employees,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
5. The National Labor Relations Board has re-
viewed the rulings made by the Hearing Officer at the
hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Hearing Officer's Report on
Objections and the exceptions thereto, the briefs of
the parties, and the entire record in the case, and
finds merit in certain of the exceptions for the
reasons discussed below.
The Employer operates a Ford automobile dealer-
ship in Warren, Michigan. On January 29, 1968, the
Petitioner tiled a petition seeking to represent the
Employer's new and used car and truck salesmen.
Then on February 7, 1968, the Petitioner commenced
a strike against the Employer, which continued until
after the election, which was held on February 28,
1968.
In its objections, the Employer alleged that certain
conduct which occurred during the critical period
destroyed the conditions necessary for a fair and free
election. Among the matters alleged by the Employer
are the following (1) rifle shots fired by unknown
parties through the Employer's main window while
employees were within the building; (2) anonymous
telephone calls in the night threatening bodily injury
to employees eligible to vote in the election; (3)
anonymous telephonic bomb threats made to the
dealership; and (4) massed and unruly picketing by
the Petitioner, including harassment of employees,
customers, and deliverymen with threats of bodily
injury, and requiring the city of Warren to station
full-time police and a police car in front of the
Employer's premises.
173 NLRB No. 76
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record discloses, as more fully set forth in the
Hearing Officer's Report, that within 2 weeks of the
inception of the picket line, six rifle bullets pene-
trated the main windows of the dealership. Another
incident of property destruction during the critical
period consisted of the throwing of rocks at the
Employer's sign by picket Leo Roach, following
which Roach was arrested for malicious destruction
of property.
After the commencement of the strike, employees
Davis and Humphreys received threatening anony-
mous telephone calls. Davis originally had served on
the picket line, but he decided to return to work. He
had an unlisted telephone number which was in the
possession of strike captain Giovanelli. Humphreys,
on the other hand, after the strike vote had been
taken, decided to continue working. Each man
received 15 to 40 threatening telephone calls before
the election. Humphreys testified that he received
several calls one night between the hours of 11:15
p.m. and 2:30 a.m. The calls received by both men
were similar in nature. Although the callers made no
mention of either the election or the strike, both
Davis and Humphreys were threatened with bodily
harm if they returned to work. Nevertheless, both
men continued to work at the dealership.
During the strike period preceding the election,
frequent complaints were lodged against pickets for
their unruly conduct. These charges ranged from the
carrying of an ax and large stick on the picket line to
the threatening of customers and deliverymen if they
crossed the picket line. These circumstances neces-
sitated the city of Warren to assign full-time police
and a police car in front of the Employer's premises.
On February 23, 5 days before the election, the
Warren Police Department telephoned General Mana-
ger Ben Long to inform him that according to an FBI
report the dealership would be bombed on the
weekend. The following day a large number of Warren
policemen came to the dealership in response to a
report that a bomb had been planted there. They
proceeded to search the premises for a bomb which
was never found. The dealership was closed at 4 p.m.
that Saturday as a result of this threat. There were
several eligible voters working in the dealership at the
time, and there were numerous eligible voters walking
the picket line on that day. They were all aware that a
bomb threat had been reported and that the police
were searching for the device. Ben Long testified that
a bomb had been found at another Ford agency while
the Union here involved was engaged in picketing
activities at that dealership.
The Hearing Officer found that the evidence
concerning the above-described conduct was not such
as to link the Union with the responsibility for the
bomb threat, the anonymous phone calls, or the
window damage. He further found that there were no
eligible voters present when the rock throwing inci-
dent involving Leo Roach allegedly occurred. Al-
though the Hearing Officer found that the window
damage and the telephone calls were evidently con-
nected with the strike, he concluded that the physical
damage which was inflicted on the Employer's prem-
ises and the bomb threat were not the type of activity
which could reasonably interfere with the employee's
free choice to the degree necessary to set this election
aside.
Upon the facts as found by the Hearing Officer an
issue is raised as to whether the election was
conducted under such circumstances and under such
conditions as to be conducive to the sort of free and
untrammeled choice of representatives contemplated
by the Act. Here the election was conducted in the
face of an often violent and emotion-filled strike.
Events occurring during the critical period included
extensive property destruction, anonymous telephone
threats to eligible voters, the report of a bomb threat
and subsequent police investigation which caused the
dealership to close down on the Saturday preceding
the election, and apparently unruly conduct on the
picket line which resulted in the stationing of
full-time police and a police car in front of the
dealership. It is apparent that the election was held in
a general atmosphere of confusion, violence, and
threats of violence, such as might reasonably be
expected to generate anxiety and fear of reprisal, and
to render impossible a rational, uncoerced expression
of choice as to bargaining representation.' It is not
material that fear and disorder may have been created
by individual employees or nonemployees and that
their conduct cannot probatively be attributed
either to the Employer or to the Union. The
significant fact is that such conditions existed and
that a free election was thereby rendered impossible.'
Accordingly, finding as we do that the election was
held in an atmosphere not conducive to freedom of
choice, we shall set aside the election of February 28,
1968, and direct that a second election be held.
i Poinsett Lumber and Manufacturing Co, 116 NLRB 1732, The
Falmouth Co, 114 NLRB 896, Diamond State Poultry Co., Inc, 107
NLRB 3.
2 Diamond State Poultry Co., Inc., supra.
AL LONG, INC. 449
ORDER of Al Long, Inc., at its Warren, Michigan, establish-
ment, be, and it hereby is, set aside.
It is hereby ordered that the election conducted [Direction of Second Election3 omitted from
herein on February 28, 1968, among the employees publication.]
3 An election eligibility list, containing the names and addresses of extension of time to file this list shall be granted by the Regional
all the eligible voters, must be filed by the Employer with the Regional Director except in extraordinary circumstances . Failure to comply with
Director for Region 7 within 7 days after the date of issuance of the this requirement shall be grounds for setting aside the election whenever
Notice of Second Election by the Regional Director The Regional proper objections are filed. Excelsior Underwear Inc , 156 NLRB 1236.
Director shall make the list available to all parties to the election. No