Borden, Inc.

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Borden, Inc., Dairy & Services Division and Truck Drivers & Helpers Local Union No. 728 , affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer- ica, Petitioner. Case 10-RC-7883 June 30, 1970 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING , MCCULLOCH, AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted by the Regional Director for Region 10 on September 19, 1969, among the employees in the agreed-upon unit at the Employer's Savannah, Georgia, operation . At the conclusion of the ballot- ing, the parties were furnished a tally of ballots, which showed that of approximately 30 eligible voters, 16 cast valid ballots for and 13 cast valid ballots against the Petitioner, 1 cast a challenged ballot, and none cast void ballots. The challenged ballot was insufficient to affect the results of the election . Thereafter, the Employer filed timely ob- jections to conduct allegedly affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Director investigated the issues raised by the objec- tions, and, on October 27, 1969, issued and duly served on the parties his Report on Objections, in which he found and concluded that the objections were without merit, and recommended that they be overruled in their entirety and that the Petitioner be certified. Thereafter, the Employer filed timely exceptions to the report and a brief in support of its exceptions, requesting the Board to sustain the Em- ployer's objections and order a new election, or, in the alternative, order a hearing on the objections. The Board determined that the issues raised by the Employer's Objections I and 2 could best be resolved at a hearing. Accordingly, on February 11, 1970, the Board issued an Order Directing Hearing with respect to Employer's Objections 1 and 2. A hearing was held on March 11, 1970, at Savannah, Georgia, before a duly designated Hearing Officer, for the purpose of receiving evidence to determine the issues raised by the Employer's Objections 1 and 2, which are: "1. Local 738 [sic], IBT, by its representatives and agents, warned and threatened employees of Borden, Inc., Dairy & Services Division, that they would retaliate against said employees and/or that 184 NLRB No. 43 they would lose their jobs if they voted against the Teamsters in the September 19, 1969 election. "2. By these and other acts and conduct Team- sters Local 738, but [sic ] its representatives and agents improperly interferred [sic] with and af- fected the results of the election." After the hearing, the Hearing Officer concluded and found that the Employer's Objections I and 2 were insufficient to raise material or substantial is- sues affecting the results of the election, and he recommended to the Board that said objections be overruled. Thereafter, the Employer filed timely ex- ceptions to the Hearing Officer's report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connec- tion 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 Act to assert jurisdiction herin. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists con- cerning the representation of the employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. We find, in accord with the stipulation of the parties, that the following unit is appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. All employees of the Employer working in the truck, plant, shipping department, and cabinet maintenance employed at the Savannah, Geor- gia, plant and all ice cream salesmen, milk retail salesmen and milk wholesale route salesmen , utility relief employees located at Savannah, Statesboro, Vidalia, Glennville, and Claxton, Georgia, excluding all other em- ployees located at Savannah, Statesboro, Vidalia, Glennville, and Claxton, Georgia, in- cluding territory salesmen, wholesale superin- tendent, wholesale ice cream supervisors, wholesale milk supervisors, retail milk super- visors, head shipping department clerk, office employees, clerical employees, professional employees, technical employees, guards, and supervisors as defined in the Act. 5. At the hearing, the Employer presented one employee witness, Stevens, who testified that fellow employees Strickland, on the day before the elec- tion, and White, at a union meeting attended by 15 to 20 employees about 10 days before the election, made the respective statements, "if things didn't go right, they [the employees] would lose their jobs," and "if we didn't all stick together, we would lose our jobs." BORDEN , INC. 397 White denied making the statement attributed to him, and further denied that he was ever given any authority by the Union to act in any official capaci- ty. Union Business Agent Collis testified that he never gave White any instructions during the cam- paign, and that he attended all the union meetings for the employees and never heard White make the alleged statement. The Hearing Officer, on the basis of conflicts in the testimony of employee Stevens, discredited his testimony and credited the testimony of employee White and Business Agent Collis As to the statement allegedly made by employee Strickland, Stevens testified that, during the day be- fore the election, Strickland talked with him and told him to pass the word to the other employees that "if things didn't go right, they would lose their jobs." Before the election the next morning, Stevens told this to employees Hill, Williams, and Murphy. Strickland denied telling or requesting Stevens to talk with other employees or making this statement to any employees himself. The Hearing Officer credited the testimony of Strickland. The Hearing Officer found that there was no evidence adduced that Strickland and White were acting upon instructions or request of the Petitioner or that the Petitioner either authorized or con- doned any of the questioned conduct. He further found that the probative evidence presented and adduced does not show that the alleged threats were made , and, if made , they did not interfere with the reasonable standards for a fair election. After careful consideration of the record, we see no basis for reversing the Hearing Officer's credi- bility determinations. In view of this conclusion, it is unnecessary to consider his findings with regard to the agency status of White and Strickland, since, even if they were acting as agents of the Petitioner, it has been found that they did not make the state- ments attributed to them. We therefore adopt the findings and recommendations of the Hearing Of- ficer and overrule the objections in their entirety. Accordingly, as the Petitioner received a majori- ty of the valid votes cast, we shall certify it as the representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that Truck Drivers & Hel- pers Local Union No. 728, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has been designated and selected by a majority of the em- ployees in the unit found appropriate herein as their representative for the purposes of collective bargaining, and that, pursuant to Section 9(a) of the Act, the said labor organization is the exclusive representative of all employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment.