Connor Trading Co., Inc.

CONNOR TRADING CO. 263 Connor Trading Company, Inc., and Truck Drivers Lo- cal Union No. 355, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Petitioner. Case 5- RC-7066 January 29, 1971 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING, BROWN , AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties, and ap- proved by the Regional Director for Region 5 on December 1, 1969, an election by secret ballot was conducted in the above-entitled proceeding on De- cember 10, 1969, in the unit found appropriate, under the direction and supervision of the said Regional Director. 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, Series 8, as amended. The tally of ballots shows that there were approximately nine eligible vot- ers and that nine ballots were cast, of which all were against the Petitioner, and none was challenged. Thereafter, the Petitioner filed a timely objection to conduct allegedly affecting the results of the election. In accordance with the Board's Rules and Regula- tions, the Regional Director caused an investigation of the objection to be made and, on January 30, 1970, issued and served on the parties his Report on Objec- tions. In his Report, the Regional Director recom- mended that the Board overrule the Petitioner's objection and issue an appropriate certification of re- sults of election. On February 9, 1970, the Petitioner filed timely exceptions to the Regional Director's Re- port. The Board, having duly considered the matter, concluded that the Petitioner's exceptions raised ma- terial issues, and ordered that a hearing be held for the purpose of obtaining evidence bearing on these issues. Pursuant to the said order, a hearing was held on April 27, 1970, in Baltimore, Maryland; before Trial Examiner William J. Brown, acting as Hearing Offi- cer. All parties appeared and participated, with full opportunity to examine and cross-examine witnesses and present evidence and argument on the issues. On July 13, 1970, the Hearing Officer issued and served upon the parties his Report and Recommendations. In his Report, the Hearing Officer concluded that certain conduct of the Employer interfered with the results of the election held December 10, 1969, and recommended that the election be set aside and a new one be conducted. Thereafter, the Employer filed ex- ceptions to the Hearing Officer's Report. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby af- firmed. 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 Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the fol- lowing employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All warehousemen, truckdrivers and helpers em- ployed by the-Employer at or out of its Ware- house located at 1900 East Fort Ave., Baltimore, Maryland ; excluding salesmen, office clerical employees, guards, professional employees and supervisors as defined in the Act. 5. The Board has' considered the Regional Director's Report, the exceptions thereto, the Hearing Officer's Report, the exceptions thereto, and the en- tire record in this case, and hereby adopts the find- ings, conclusions, and recommendations of the Hearing Officer to the extent consistent with this De- cision. On October 10, 1969, Teamsters Local 557, affiliat- ed with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, filed a representation petition for an election in a unit of the Employer's warehousemen, drivers, and- help-ers.' On October 24, a preelection conference was held at the Board's Region 5 Office, attended by a repre- sentative of the Regional Director, by Attorney Pen- niman and Manager Connor for the Employer, and by Business Representative Zappacosta of Local 557. Also present was Business Representative Crout of Truck Drivers Local Union 355 (also affiliated with the Teamsters), which had lost an election in the same unit during 1968. Connor expressed surprise that Lo- cal 557 had filed the petition, because he believed Local 355 had jurisdiction. The reason for Local 355's presence was discussed. Upon learning of Local 557's intent to assign its bargaining rights under any ensu- ing certification to 355, the Employer asserted its un- willingness to accept assignment of bargaining rights upon certification of Local 557. Thereupon it was observed that Local 355 would have to file its own petition if it wished to obtain bargaining rights 1 All dates refer to 1969 unless otherwise indicated. 188 NLRB No. 43 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through a Board election. Although Local 355 ex- pressed a general interest in securing representation rights, it indicated no specific intention to file a peti- tion. The conference ended with the Employer and Local 557 signing a Stipulation for Certification Upon Consent Election, scheduling an election for Novem- ber 14. On November 7, the Regional Office received a letter from Local 557. requesting withdrawal of its petition, and an agent of the Regional Director imme- diately called the Employer's attorney to inform him of the request. The Employer's attorney expressed no objection. The agent asked that the Employer remove the previously posted notice of election, and advised the attorney he could consider the withdrawal request approved. At 2:50 p.m. the Regional Director sent a wire to the parties and their attorneys informing them that the petition had been .withdrawn, that the elec- tion arrangements were canceled, and that the notice of election should be removed immediately. On November 7, 1969, after receiving the Regional Director's telegram, the Employer called its attorney for advice about instituting a wage increase that had been under consideration prior to Local 557's peti- tion. The Employer's attorney advised the Employer that, absent evidence of any further interest by Local 557, it was free, in his opinion, to revive its proposed wage increase plan and make it effective in accord- ance with the original plans. On November 10 and 11, Connor explained to all employees in the unit that the policy of giving raises in pay each 6 months would be continued and extended; and announced a new 3- year plan and the institution of new maximum rates for drivers (up 37-1/2 cents to $3 hourly) and ware- housemen (up 25 or 35 cents to $2.65). Local 355, meanwhile, had secured signatures on authorization cards in its own name from employees in the same unit. It did not make a demand upon the Employer for recognition, but filed the instant peti- tion on November 7, at 2:59 p.m. Local 355 did not inform the Employer of the filing. On Monday, No- vember 10, the Regional Director sent a letter and a copy of the petition to the Employer. The Employer did not receive the letter and petition-its first notice of the filing-until November 13. Thereafter, Local 355 and the Employer executed a Stipulation for Cer- tification upon Consent Election, and, as indicated above, the Regional Director approved it on Decem- ber 1. The election was conducted on December 10, the tally showed the Union lost, and the Union filed an objection based on the aforementioned wage an- nouncements. The Hearing Officer concluded that "the [Employer's] decision on and announcement of" the increase in rates were made "at a time when the Com- pany had knowledge of Local 355's continuing inter- est in representation of unit employees," and that its conduct in announcing the benefits on November 10 and 11 amounted to interference with the results of the election. We disagree. The Employer's November 10 and 11 announce- ments of its new 3-year plan with increased wage rates fell within the critical period marked by the Novem- ber 7 filing by Local 355, and hence must be consid- ered? It is well settled that: Although the granting of benefits during the rele- vant period preceding an election is not necessar- ily cause for setting aside an election, the Board has set aside elections where it appears that the granting of the benefits at that particular time was calculated to influence the employees in their choice of a bargaining representative. In the ab- sence of evidence demonstrating that the timing of the announcement of changes in benefits was governed by factors other than the pendency of the election, the Board will regard interference with employee freedom of choice as the motivat- ing factor. The burden of establishing a justifia- ble motive remains with the Employer. The fact that the employees may have known about or otherwise anticipated the increase in wages is not necessarily controlling. The crucial determina- tion is whether the benefits were conferred for the purpose of influencing the employees in their choice of bargaining representatives and were of a type reasonably calculated to have that effect.3 The type of benefits conferred were such that the "crucial determination" is whether the Employer an- nounced the benefits for the purpose of influencing the employees in their choice of bargaining represent- ative. The Hearing Officer discredited the Employer's tes- timony that it had decided on the new maximum rates prior to October 10, when Local 557 filed its petition, and the Employer excepts to this credibility reso- lution.4 However, without regard to when the exact amount was formulated, we find no evidence that the timing of the Employer's announcement of benefits was tainted by an unlawful purpose. Although Local 355 had expressed a generalized interest in repre- 2 West Texas Equipment Company, 142 NLRB 1358; The Ideal Electric and Manufacturing Company, 134 NLRB 1275. 3 The Baltimore Catering Company, 148 NLRB 970, 973. 4 The Employer also excepts to various other findings of the Hearing Officer, on the ground that he erred in crediting certain testimony. It is the established policy of the Board not tooverrule a Hearing Officer's credibility resolutions unless the clear preponderance of all the relevant evidence con- vinces us that the resolutions were incorrect . The Coca-Cola Bottling Compa- ny of Memphis, 132 NLRB 481, 483; Stretch-Tex Co., 118 NLRB 1359, 1361. We find no sufficient basis for disturbing the credibility resolutions in this case. CONNOR TRADING CO. 265 senting the employees when it attended the confer- ence on Local 557's petition, it failed to fortify this by thereafter making known and substantiating a sup- ported interest in them. Indeed, thereafter Local 557 executed the Stipulation with the Employer. Although it was understood by all that Local 355 would have to file its own petition in order to displace Local 557, there is no evidence that, when the Employer was informed of the withdrawal on November 7, it was simultaneously advised Local 355 was filing in substi- tution. Nor do we think these circumstances imposed on the Employer a burden of inquiry, on November 7, whether it could anticipate a substitution. Fur- thermore, the record is barren of any showing to sup- port Local 355's assertion that the Employer, when it announced the wage increases, informed the employ- ees its purpose was "to meet Union conditions." In sum, we think it clear from the foregoing that what- ever inchoate interest Local 355 may have expressed at the October 24 conference was, standing alone, insufficient to charge the Employer with notice of continuing interest from which an improper motive might be inferred. In any event, a new petition for an election would now be timely, as a year has passed since the material events herein. Accordingly, as we have overruled the objection and as the tally of ballots shows that the Petitioner has not received a majority of the valid votes cast, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes has not been cast for Truck Drivers Local Un- ion No. 355, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, and that the said labor organization is the exclusive representative of the employees in the unit found appropriate, within the meaning of Section 9(b) of the National Labor Relations Act, as amended.