Bill's Institutional Commissary Corp.

BILL'S INSTITUTIONAL COMMISSARY CORP. 597 Bill's Institutional Commissary Corporation and Gen- eral Truckdrivers, Chauffeurs, Warehousemen and Helpers Local 270, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Ind. Case 15-CA-3239 November 17, 1970 SUPPLEMENTAL DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS On November 27, 1967, Local 270, General Truck- drivers, Chauffeurs, Warehousemen and Helpers, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Ind., was certified as the exclusive repre- sentative of Respondent's commissary employees following an election held pursuant to a Decision and Direction of Election and the subsequent resolution of Respondent's objections, which were overruled.' Thereafter, on June 14, 1968, the National Labor Relations Board issued its Decision and Order in the instant case,2 finding that Respondent violated Section 8(a)(5) by refusing to bargain with the certified Union. The Board, accordingly, ordered the Respondent, upon request, to bargain collectively with the Union. Respondent refused to comply with this order, contending that the Board's certification of the Union was invalid. On November 10, 1969, the United States Court of Appeals for the Fifth Circuit entered its decision,3 denying enforcement of the Board's Order without prejudice to a renewal of the Board's enforcement petition, pending further consideration by the Board. The court held that Respondent's objection to the election based on the Union's electioneering conduct raised issues which should have been resolved by the Board upon a hearing, as had been requested by Respondent. Accordingly, the court remanded the case to the Board, to receive evidence and determine "the extent to which the Union misrepresentations affected the election." On February 26, 1970, the Board issued an Order in which it reopened the record, remanded the case for further hearing consistent with the opinion of the court, and directed the Trial Examiner, upon conclu- sion of the hearing, to prepare and serve on the parties a Supplemental Decision containing findings of fact, conclusions of law, and recommendations. Pursuant to notice, a supplementary hearing was held on April 9, 1970, before Trial Examiner Thomas A. Ricci.4 On June 26, 1970, the Trial Examiner issued the attached Supplemental Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Supplemental Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Supplemental Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, and hereby orders that the Respondent, Bill's Institutional Commissary Corporation, New Orleans, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in our original order dated June 14, 1968. I Case 15-RC-3716, decision not punted in NLRB volumes 2 171 NLRB No 188 3 418 F2d405 4 Respondent's motion to dismiss the complaint and remand the case for a hearing before a Hearing Officer in the representation case is hereby denied See Metropolitan Life Insurance Company, 156 NLRB 1408 5 We agree with the Respondent that a hearing on objections should be conducted in accordance with the rules applicable to nonadversary proceedings Addison Shoe Corporation, 184 NLRB No 35 at In I However, the very nature of the Respondent's exceptions to the procedural aspects of this hearing appears to be a protest against a failure to adhere to strict rules which might apply in an adversary matter In any event, we do not find that the General Counsel's conducting his case as an adversary proceeding constituted prejudicial error under the particular facts of this case as the Trial Examiner correctly held that the burden was on the Respondent to prove an improper impact upon the election The court remanded this case for a full hearing on the Respondent 's objection The General Counsel submitted his evidence on the possible impact the letter might have had on the election Following the court's remand, the Respondent had ample opportunity in its preparation of its case for the hearing to investigate and question, under proper safeguards, the current and former employees See Patent Traders, Inc, 167 NLRB 842, 855, and cases cited therein Having failed to make any such investigation, it cannot now be said that Respondent was denied due process of law. SUPPLEMENTAL DECISION POSTURE OF THE CASE THOMAS A. Ricci, Trial Examiner: This case is before the Board on remand from the circuit court , which denied enforcement of an affirmative bargaining order and remanded the proceeding for a hearing to determine the 186 NLRB No. 82 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect upon the employees of a misrepresentation by the Union before a Board-conducted election.' The Board had found a violation of Section 8(a)(5) of the Act by the Respondent following a refusal to honor a certification of representatives.2 Pursuant to the remand, the Board reopened the record for a hearing consonant with the court's opinion and the hearing was held before the duly designated Trial Examiner on April 9, 1970, at New Orleans, Louisiana. All parties were afforded full opportu- nity to call witnesses and introduce evidence. Briefs were filed by the General Counsel and the Respondent after the close of the hearing. Upon the record as made at the reopened hearing, and from my observation of the witnesses, I make the following: FINDINGS OF FACT The charge and the complaint were occasioned by the Respondent's admitted, refusal to bargain with the Union on request after a majority of the employees involved had voted for union representation and the Regional Director had issued a certification of representatives to that effect. There was an affirmative defense, that union agents had coerced employees several weeks before the election, and that the Union had materially misled the employees by means of a letter mailed to them only a few days before the balloting. The Board found no merit in either of the defenses. Before the circuit court, in enforcement proceedings, the Respondent reiterated the same defense. As to the first, the assertion of coercion charged to the Union, the court agreed there was insufficient reason to hold any hearing, as the Respondent demanded. The second defense, that the Union letter to the employees contained a material misrepresentation and therefore misled the employees into voting in favor of the Union, rested on a letter mailed on September 25, 1967, to 9 of the 10 employees eligible to vote in the election. The election took place at 5 p.m., Friday, September 29, and management first learned of the letter when it saw a copy brought to the unit manager early that morning. It reads as follows: Dear Sir and Brother: I would like to thank you for the wonderful attendance we had at our last meeting, and I would also want to remind you that the up-coming election that will be held at your plant means more to you as a worker and breadwinner than you may realize. For your consideration I have enclosed a page from one of many contracts that the Teamsters now have in force with the same type companies that you work for now. Look over these wages and see for yourself just what you should be getting and compare them with your present wages; and then, ask that old boss if he really has your welfare in mind, or does he want to keep you in the dark. The enclosure that accompanied the letter was the photocopy of a page from a collective-bargaining agree- ment, one setting out comprehensive wage scales for I N.L.R.B. v. Bill's Institutional Commissary Corporation, 418 F.2d 405 (C.A. 5). employee categories similar to those of the Respondent. The evidence shows, and both the Board and the court were aware, that the collective-bargaining agreement from which the wage scale schedule had been taken was a contract then in effect between this Union and an employer in New York City (Horn & Hardart) engaged in the same kind of business carried on by the Respondent in New Orleans. The contention of the Respondent was, both to the Board and to the court, that in consequence of this letter the employees had been misled into believing that the Union had achieved precisely those wage rates in the New Orleans area, and that they had voted in favor of the Union in reliance on such misrepresentation. It was also clear that no one on behalf of the Respondent learned of the letter before the morning of the election. In appraising this defense by the Union , the court commented that "The letter, fairly read , purports to assure the employees that the Union can or will obtain similar if not identical benefits for them," and that it "clearly implies that the stated wages were obtainable or in existence in the New Orleans area .... ." The court also held it could not determine "whether this misrepresentation had a significant impact upon the election . . ." because there were not sufficient facts available to it, and it expressed doubt "as to whether the Company had either sufficient knowledge or time to rebut the letter." Its decision was to remand the case "for a full hearing to determine the extent to which the Union misrepresentation affected the election." Doice Raymond, unit manager, called as a witness by the Respondent, testified that he first saw the letter in question when Tilly, a warehouseman, brought it to work on the morning of September 29, the day of the election. He said Tilly was the only man at work during the day, and that the drivers returned from their road work that day at their usual hour, 3 or 4 p.m. As to the night shift men, who normally report for work at 6 p .m., they came to the plant at 4 o'clock that afternoon because of the election scheduled for 5 p.m. Raymond said he did not discuss the letter with any of the employees then. He also added that from his examination of the wage scale attached to the Union's letter, he "felt" they were not New Orleans rates, "but I didn't have any specific knowledge." "I didn't know for a fact," that the written schedule reflected pay given by his competitors, "but in my opinion I didn't think it did." E. B. Joseph Brown, the union business agent, showed, with letters placed in evidence, that he had received the New York contracts from there in June, at his request. He testified that on Saturday afternoon , September 23, about a week before the election, he called the Respondent's employees to a meeting with him in his office, and that six or seven were there . He recalled six of them by name. The parties stipulated on the record here that one of those men, Kidder, was not an eligible employee and did not vote, and that another, Ford, voted subject to challenge. Apparently his challenge was not resolved because his vote could not affect the results of the election, which were six for the Union and two against. Brown went on to testify that during the Saturday meeting he showed the contract, also received in total as an 2 171 NLRB No. 188. BILL'S INSTITUTIONAL COMMISSARY CORP. 599 exhibit here, to the assembled employees, and explicitly informed them it was a New York contract. He also said they took it in their hands and read the various clauses. Still according to the union agent's testimony, the men asked many questions about the contract and he explained to the men these "provisions ... were not extremely high even for the New York area . . . that this was not an exorbitant wage, that it was quite possible that we could get this; it would have to be our ultimate goal." When the men asked could this be accomplished "in one jump," he answered . . this sometimes was possible, but normally it would take maybe one or two contracts, and an awful lot of negotiating and solidarity." Brown added that the employ- ees then brought up the matter of the Respondent's competitive position if it should agree to pay these wages, and that he told them "we would attempt to negotiate with Bill's Institutional Commissary in the hopes of coming out with a favorable contract whereby we could go again to the other people in the industry, that would be relevant to commissaries, and put everybody on a competitive basis." No other witnesses were called by any of the parties. CONCLUSIONS AND RECOMMENDATION I have no reason for discrediting either of the witnesses who appeared at the hearing. Manager Raymond said he had no time to discuss the letter and its wage scale attachment with the employees that day and that he did not do so. There is no merit in the General Counsel's contention that Raymond must have known the schedule was from somewhere else and that he had ample opportunity to correct any misunderstanding he might have imagined the employees entertained. The regular men returned only shortly before the election, and the road men came before the 5 o'clock balloting for the purpose of voting. Any kind of talk by the Respondent to assembled employees then would now be labeled improper by the General Counsel under the Board's established electioneer- ing rules. Brown had the Horn & Hardart contract in his possession for some time, he had obtained it for use in this very organizational effort, and it was to be expected, therefore, he would use it to show the men what the Union had accomplished elsewhere and might again do here. Because the stated wages were higher than the men really expected, he cautioned them it might take more than a first contract to obtain so much from the Respondent. The men therefore knew, when they received the September 25 reminder letter, that it was the New York contract terms that were attached. I think it a fair inference that there was talk about this during the following week among all the employees. Unlike the case of the manager, who had very little time worthy of note to combat the argument, experience has shown that employees will talk the pros and cons of unionism surely during the last 5 days before voting. Kidder may not have been eligible, but he was there and heard. On this record nothing can be said about Ford, but it can hardly be argued each and every employee in the plant must be informed of every detail only out of the mouth of the organizer. In these circumstances it would be difficult to find that in fact the employees were mislead, when they received the letter, into believing the wage scale set out rates which some other employer was paying in the New Orleans area. Or, however phrased, that the "impact" on them was to cause them to vote against their true desires. In nevertheless resisting the validity of the complaint, the Respondent's contention at this stage of the proceeding is essentially a procedural argument, and does not go to the substance of the matter at issue . At the hearing counsel for the Respondent objected to the receipt of evidence pertinent to the remand concern on the ground that it was offered by the General Counsel after the Respondent had been afforded full opportunity to introduce its own proof and had rested. As Manager Raymond's testimony was intended to establish affirmatively that the Union's campaign letter had had an improper effect on the employees, the Government's position was that the testimony of Business Agent Brown fell in the area of proper rebuttal. In its brief the Respondent advances the theory that there rested a burden on the General Counsel to reestablish the validity of the Board certification following the election, and that, having failed to offer affirmative proof in advance of the receipt of evidence from the Company, the Government should have been foreclosed, regardless of whether or not the defense testimony was of any value. To support this argument the Respondent misreads the import of the court's opinion. The court did not find, as the Respondent would have it, that the "certification is dead," that it must be "resurrected" by the General Counsel. Had the court been of the view that the mere fact of the letter having been mailed, standing alone, sufficed to destroy the results of the election, it would not have remanded the proceeding for further evidence. But even assuming, as the Respondent contends-a view I find without merit-that the "General Counsel has the burden of proving that the Union's misrepresentation did not have an impact on the election," I am satisfied Brown's testimony suffices to accomplish even that. In fact, however, if there is a burden in this complaint proceeding, it rests on the Respondent. At bottom, the hearing, as ordered by the court, is on the question of the validity of the employer's objections to the election. And the Court had occasion to say, in this very case, when disposing of the Respondent' s alternative objection based on alleged coercive conduct by union agents: "Furthermore, the Company has failed to offer any evidence that the incidents created an `atmosphere of fear of reprisal such as to render a free expression of choice impossible.' " Moreover, as the court said in a comparable situation : "It is further quite clear that the burden was not on the board to show that the election was fairly conducted but on the respondent to show that it was not." N.L.R.B. v. Huntsville Mfg. Co., 203 F.2d 430 (C.A. 5). Accord, N.L.R.B. v. 0. K Van Storage Co., 297 F.2d 74 (C.A. 5): "In order to be entitled to a hearing on its objections to an election, an objecting party must supply the Board with specific evidence which prima facie would warrant setting aside the election." The truth of the matter is the Respondent has no evidence in support of its assertion, the basis of objection to the election, that the letter in question in fact mislead the employees, ambiguously as it was written. When the court 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remanded the case it did so because it accepted the Respondent's assertion that it could prove an improper impact on the election. The Company had ample advance knowledge of what would be called for at the hearing; it was afforded full opportunity to call witnesses and it failed to do so. RECOMMENDATION I recommend that the Board reaffirm its earlier finding that the Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union.