Lloyd A. Fry Roofing Co.

86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lloyd A. Fry Roofing Company and Production and Miscellane- ous Workers Union of Chicago and Vicinity, Local 705, Peti- tioner. Case No. 13-RC-6018. March 9, 1959 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Thirteenth Region on June 17, 1958, among the employees in the unit described in the stipulation. At the conclusion of the election, a tally of ballots was furnished the parties. The tally shows that of the 66 eligible voters, 64 cast valid ballots, of which 37 voted for, and 27 against, the Petitioner, the participating ll bor organization. Thereafter, the Employer filed timely objections to the election alleging in substance that : (1) The Petitioner promised employees it would have the Employer furnish pension and welfare benefits at the Employer's expense, if the employees voted for the Petitioner; (2) the Petitioner had a preelection party for the employees; (3) the Petitioner engaged in surveillance outside the Employer's plant; (4) Petitioner's agents intimidated and improperly influenced the voting employees; (5) the Petitioner made antiemployer speeches in violation of the Peerless Plywood rule; 1 (6) the Petitioner threatened to stop trucks and to cause the Employer to cease opera- tions, if the employees failed to vote for the Petitioner. In accord- ance with the Rules and Regulations of the Board, the Regional Director caused an investigation of the objections to be made and, on August it, 1958, issued and served on the parties his report on objections, in which he recommended that the Employer's objections be overruled. The Regional Director also overruled an objection, which he had raised on his own motion, to the effect that two employees threatened a third employee 3 weeks prior to the election. Thereafter, the Employer filed timely exceptions to the report, and supporting affidavits. On October 16, 1958, the Board issued an order directing hearing limited to the resolution of the issues raised in objection No. 6 of the Regional Director's report and exceptions thereto, but which did not dispose of any of the objec- tions heretofore raised. Pursuant thereto, a hearing was held on November 4 and 5. Thereafter, on December 31, Hearing Officer Bernard Ness issued and served his report relative thereto, a copy of which is attached hereto and in which he recommended that objection No. 6 be overruled. No exceptions were filed to the hearing officer's report. ' Peerless Plywood Company , 107 NLRB 427. 123 NLRB No. 10. LLOYD A. FRY ROOFING COMPANY 87 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins]. The hearing officer's rulings ' made at the hearing are free from prejudicial error and are hereby affirmed. The Board has reviewed the stipulation of the parties, the objections, the Regional Director's report, the Employer's exceptions thereto, and the hearing officer's report on objection No. 6, and upon the entire record in this case, the Board makes the following findings of fact : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the represen- tation of employees of the Employer 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 collective bargaining within the meaning of the Act : All production and maintenance employees, employed at the Employer's Summit, Illinois, roofing plant, exclud- ing office clerical employees, plant clerical employees, guards, pro- fessional employees, and supervisors as defined in the Act. 5. Originally, the Employer filed six objections. The Regional Director in his report recommended that they all be overruled. The Employer excepted specifically to only the Regional Director's findings and recommendations as to objections Nos. 2 and 6, and the objection raised by the Regional Director on his own motion. As the Employer did not specifically except to the other findings and conclusions of the Regional Director but merely argued gen- erally that certain of its objections are well founded and supported by sworn statements heretofore submitted, we shall not further consider Employer's objections Nos. 1, 3, 4, and 5, and hereby adopt the Regional Director's recommendations that these objections be overruled.2 As to Employer's objection No. 6, the Employer did not file any exceptions to the hearing officer's report relative hereto. Accordingly, we adopt the hearing officer's recommendation that this objection be overruled. Objection No. 0: In its second objection, the Employer alleges that, on the day prior to the election, the Petitioner at its own cost and expense, held a party for the employees. The Regional Direc- tor's report indicates that a meeting or a party was held by the Petitioner on May 16, 1958, at Kristie's Tavern, and that beer and soft drinks were served and paid for by the Petitioner. In light ' See General Electric Company, 119 NLRB 1262, 1263. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of these circumstances, we are of the opinion that the Petitioner's conduct contains no element of coercion and therefore falls within the permissible area of electioneering with which this Board does not interfere.3 Accordingly, in agreement with the Regional Direc- tor, this objection is hereby overruled. Objection raised by the Regional Director: Two or three weeks prior to the election, according to an employee who neither speaks nor understands English, two other employees (one of them ten- tatively selected as a member of the Petitioner's negotiating com- mittee) swore at and threatened him. The two employees deny this and are corroborated by another employee. We agree with the Regional Director that it is unnecessary to resolve credibility as the incident itself was too isolated to have created an atmosphere of fear and reprisal. Accordingly, we overrule this objection. Upon careful consideration of the entire record including the Employer's objections, the Regional Director's report on objections, the Employer's exceptions, supporting memoranda, and the hearing officer's report on objection No. 6, we find the Employer's objections and exceptions to be without merit and hereby overrule them. As the Petitioner has received a majority of the valid ballots cast in the election, we shall certify the Petitioner as the collective bar- gaining representative of the employees in the appropriate unit. The Board certified Production and Miscellaneous Workers Union of Chicago and Vicinity, Local 705, as the collective-bargain- ing representative of the employees in the unit hereinabove found appropriate.] 8 Albion Malleable Iron Company, 104 NLRB 225, 226, 227; Ohmite Manufacturing Company, 111 NLRB 888. See also , Superior Sleeprite Corporation, 117 NLRB 430, 433. REPORT OF HEARING OFFICER ON OBJECTIONS TO ELECTION Pursuant to a stipulation for certification upon consent election entered into by the parties hereto, an election was conducted in the above-entitled proceeding on June 17, 1958, under the direction and supervision of the Regional Director for the Thirteenth Region. On June 20, 1958, the Employer filed objections to the election. The Regional Director investigated the objections and, thereafter, on August 11, 1958, issued and served upon the parties his report on objections. In his report, the Regional Director recommended to the Board that the objections be overruled and the Petitioner certified. On August 29, 1958, the Employer filed exceptions to the Regional Director's report, requesting that the Regional Director's report and recommendations be reversed and that a hearing be held to determine the credibility issues as posed by certain affidavits on file with the Board. After having duly considered the matter, the Board, on October 16, 1958, issued its Order directing that a hearing be held before a hearing officer, limited to resolution of the issues raised in objection No. 6 of the Regional Director's report and exceptions thereto, and that the hearing officer prepare and cause to be served upon the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of the said issues. Pursuant to notice, a hearing was. held at Chicago, Illinois, on November 4 and 5, 1958, before the hearing officer. The Employer, the Petitioner, and the Regional Director were represented by counsel, and participated in the hearing. LLOYD A. FRY ROOFING COMPANY 89 Full opportunity to be heard , to examine and cross -examine witnesses, and to introduce evidence bearing on the issues was afforded all parties . Upon the entire record in the case and from his observation of the witnesses , the hearing officer makes the following findings, conclusions , and recommendations. FINDINGS OF FACT The Employer's Objection No. 6 reads as follows: Prior to the date of execution of the Stipulation for Certification Upon Consent Election herein , and also subsequent to that date and prior to the actual time of holding of the election herein, the Union Petitioner herein did tell the employees that unless the Union was voted in, trucks entering and leaving the plant would be stopped , nothing would get in or out of the plant, and the Employer would have to cease operations and therefore, that the employees had better vote for the Union if they wanted to stay at work; this threat of stopping trucks was calculated to place the employees in fear of imminent action by the Union Petitioner herein, inasmuch as imme- diately prior to the execution of the Stipulation for Certification Upon Consent Election herein, the Union Petitioner did picket the Employer and actually stop trucks from entering or leaving the premises , thereby stopping production completely. The uncontroverted testimony discloses that the Petitioner picketed the Em- ployer's premises on May 21 and 22, 1958, and effectively stopped trucks from entering the plant. Although the purpose of the picketing was not explained on the record , it was made clear that the picketing ceased when the parties, on May 22, 1958 , consented to a Board election. The Employer contends that after May 22 , 1958 , the Petitioner, through William Ford, its secretary, in charge of the organizational campaign , made threatening remarks to the employees that if the Union lost the pending representation election, the Union would picket the plant again, trucks would be stopped, and the Com- pany would have to cease operations . It further contends that its employees, James Dobbins and James Taylor, made substantially similar remarks to employees and that such statements were attributable to the Petitioner. Ford, secretary of the Union , held about four or five informal meetings with the employees during the period between May 22, 1958 , and the eve of the election, including one the afternoon of June 16, after working hours, and another about a week before the election. William Denton, an employee of the Company, called as a witness by the Company, testified at the hearing that he attended three union meetings. He was present at the June 16 union meeting at Kristie 's Tavern for only about 5 minutes and left while it was still going on. He denied that Ford mentioned anything about picketing at the gates or closing the plant down at any of the union meetings . An affidavit , signed by Denton and taken by the Company on July 16, 1958 , which was received in evidence , states in part as follows: I do remember in one of these meetings that Mr. Ford , the Union Repre- sentative , stating that if the Union lost the election , the Union could put up a picket line to keep the trucks from coming in or out of the plant. I do not recall Mr. Ford or any other Union Representative saying that in the event the Union lost the election the Union would do that. When confronted with the affidavit at the hearing , Denton testified that the first sentence of that part of the affidavit referred to supra, was in error and should read , "I do not remember . In an affidavit submitted to a field examiner of the Regional Office , dated July 23, 1958 , also received in evidence, Denton stated, "He [Ford] did not say anything about putting pickets at the gates and closing the plant down if the Union did not win the election." The affidavit further states , "At no time during any of the meetings did I ever hear Ford tell the employees that the Union would put pickets around the plant and close it down if the Union did not win the election." Ford denied that at any meeting of employees did he ever state that the Union could or would, if it lost the election, strike, picket , stop trucks, or otherwise shut down the plant. According to Ford, he did not tell employees that if the Union lost the election, it would be 1 year before another election could be held. His testimony is corroborated by the credible testimony of employees, Hatley, Taylor, Dobbins, and Fisher. The Company also called as a witness an employee , Joe Mathias. He testified that four other employees , including himself, were leaving the plant on May 21 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a car when Ford met them at the gate and said that truck would be pulled out and that would stop the plant from operating. Ford was alleged to have also asked the employees to respect the picket line. The hearing officer finds it unnecessary to determine whether or not Ford did make the statements on May 21 attributed to him by Mathias. It appears clear that Ford was talking only of the picketing before the parties agreed to an election and, despite leading questions by Company 's counsel , Mathias did not testify that Ford referred to future picketing if the Union lost the election. Moreover, since Ford 's alleged remark occurred prior to the execution of the stipulation for certification upon consent election , it cannot be considered as a basis for objections . (See F. W. Woolworth Company, 109 NLRB 1446.) The only nonhearsay evidence to support the allegation that since May 22, 1958, Ford told employee that if the Union lost the election , it could picket, stop trucks, or shut down the plant, is contained in Denton's affidavit taken by the Company on July 16 , 1958. This statement is not supported by the affidavit submitted to the Board only about a week later and is in direct conflict with his oral testimony at the hearing . Apart from the obvious inconsistencies in the affidavits and his oral testimony, Denton did not impress the hearing officer as a candid and forthright witness. His testimony was replete with "I don't remember" and "I don't think so." The hearing officer does not place any reliance upon his oral testimony or his affidavits as regards the issue concerning the alleged remark made by Ford. The only other testimony which could tend to support the Company's conten- tion that Ford made the alleged remarks is revealed in the hearsay testimony of Nelson Johnson . Johnson, presently a foreman , but who was a shipping clerk and part-time foreman at the time of the election , was called as a witness by the Company. He testified that Hoover Hatley , an employee , had told him that Ford, at a union meeting about a week before the election , said the Union could 1 picket and stop the trucks from coming in or out if they lost the election. Ac- cording to Johnson, Hatley told him of the meeting and alleged remarks by Ford at the plant the day following the meeting . Johnson never attended any union meetings nor did he ever hear Ford make the alleged remarks. Hatley, called as a witness by the Union , denied that he told Johnson that Ford said at a union meeting that if the Union lost the election , it would or could shut down the plant or picket and stop trucks from going in. Hatley further testified that he had attended union meetings but never heard Ford make the statement about picketing attributed to him. Since the hearing officer has discredited Denton , the hearing officer can place little reliance upon the hearsay testimony of Johnson to support a finding that Ford made the statements attributed to him. This is especially true in the face of the categorical denial of Ford, corroborated by the credible testimony of four other witnesses who attended the meetings . Accordingly, the hearing officer finds that Ford did not tell employees that if the Union lost the election, it would or could picket , stop trucks, or shut down the plant. Hatley impressed the hearing officer as being a truthful witness and inasmuch as he never heard Ford make the remarks about picketing, I do not believe that he would have told Johnson such remarks were made and therefore I do not credit Johnson in this regard. Johnson also testified that about a week before the election, an employee, Dillard West, informed him that James Taylor, also an employee , had visited West's home and told West that if the Union lost the election, the Union would picket the plant again. Taylor, also called as a witness by the Union , denied that he told West the Union would picket the plant or stop trucks if the Union lost the election. He further testified that he had attended practically all of the union meetings and never heard Ford make any statement about picketing or stopping trucks. Ac- cording to Taylor, the only statement made by Ford referring to the possibility of a union loss at the election was that another election could not take place for a year? In view of Taylor's denial and the absence of any testimony by West, the one to whom Taylor's alleged remark was made , the hearing officer is constrained to credit Taylor's denial . Accordingly, the hearing officer finds that Taylor did not tell West that the Union would picket the plant again if the Union lost the election. 1 At another point in his testimony , Johnson used the word "would." 2 West was not called as a witness by any of the parties. W. W. WALLWORK FARGO, INC. 91 Booker Carroll, an employee, called as a witness by the Company, testified that on the morning of the election, he overhead some conversation about the Union emanating from the plant washroom. Although he could not see the individuals concerned, he recognized one of the voices as that of James Dob- bins, an employee. Carroll testified that he heard Dobbins say "If the Union don't win, the Union man was going to picket again." Dobbins, called as a witness by the Union, denied making the statement attributed to him by Carroll. Dobbins further testified that he attended all of the union meetings and that the only statement made by Ford regarding a union loss at the election was that if the Union lost, it would be a year before another election could be held. Dobbins impressed the hearing officer as a forthright and honest witness and the hearing officer credits his denial. Moreover, concerning the alleged remarks made by Taylor and Dobbins, even if the two individuals made the remarks about picketing, as contended by the Employer, there is no evidence to support a finding that Taylor and Dobbins were acting as agents of the Union or vested with any authority. Absent evidence of union responsibility for the alleged remarks of the rank-and-file employees, and since these incidents were essentially isolated in nature, there is no basis for a finding that such remarks tended to create an atmosphere rendering a free election impossible.3 CONCLUSIONS AND RECOMMENDATIONS Having found that Ford did not tell the employees that unless the Union was voted in the Union would picket the plant, trucks would be stopped, and the Company would have to cease operations; that neither Taylor nor Dobbins made substantially similar remarks, and that the facts do not establish interference with the election or the exercise of a free choice of representatives by the em- ployees, it is recommended that the Employer's objection No. 6 be overruled. As provided in the Board's Order of October 16, 1958, within 10 days from the date of issuance of this report, any party may file with the Board in Washington, D.C., an original and 6 copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof upon each of the other parties, and shall file a copy with the Regional Director. 3 Orleans Manufacturing Company, 120 NLRB 630. W. W. Wallwork Fargo, Inc. and General Drivers, Warehouse- men, Dairy Employees, and Inside Workers, Local Union No. 116, of the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, and Local No. 2172, International Association of Machinists, AFL-CIO General Drivers, Warehousemen, Dairy Employees, and Inside Workers, Local Union No. 116, of the International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and Local No. 2172, International Association of Machinists, AFL-CIO and W. W. Wallwork Fargo, Inc. Cases Nos. 18-CA-862 and 18-CC-48. March 10, 1959 DECISION AND ORDER On July 8, 1958, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent Company and the Respondent Unions had engaged in and were engaging in certain unfair labor practices and recom- 123 NLRB No. 15.