Uniline Corp.

UNILINE CORPORATION Uniline Corporation and Retail Delivery Drivers, Driver-Salesmen, Product Workers and Helpers Local No. 588, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 20-CA-7725 June 14, 1974 SUPPLEMENTAL DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On May 5, 1972, Retail Delivery Drivers, Driver- Salesmen, Product Workers and Helpers Local No. 588, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, was certified as the exclusive representative of a certain appropriate unit of employees of Respondent, Uniline Corporation, following an election and subsequent resolution of Respondent's objections to conduct affecting the results of the election which were overruled without granting the Respondent a hearing.' Thereafter, on February 22, 1973, the National Labor Relations Board issued its Decision and Order in the instant case,2 finding that Respon- dent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 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. Thereafter, the Board applied for enforcement of its Order with the United States Court of Appeals for the Ninth Circuit and, on October 17, 1973, the court denied the application for enforcement at that time, holding that the Respondent was entitled to a hearing on its Objections 4, 17, and 20 to conduct affecting the results of the October 14, 1971, election. On December 6, 1973, the Board issued an order reopening the record and remanding the proceeding to the Regional Director for hearing before an Administrative Law Judge for the purposes of taking evidence in accordance with the court's memoran- dum of October 17, 1973, and to prepare and serve on the parties a supplemental decision containing findings of fact based on the evidence received, conclusions of law, and recommendations. Pursuant to such order, the Regional Director issued a notice of hearing on January 11, 1974, and a hearing was held on February 8, 1974, in San Francisco, California, before Administrative Law Judge Her- man Corenman. On March 5, 1974, the Administrative Law Judge issued the attached Decision 3 in this proceeding. 589 Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommendation. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby overrules the objections to conduct affecting the results of the election ; affirms the certification of Retail Delivery Drivers , Driver- Salesmen, Product Workers and Helpers Local No. 588, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the representative of the employees in the appropriate unit; and orders that Respondent, Uniline Corpora- tion, Union City, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order previously issued herein on February 22, 1973, at 201 NLRB 998. 1 Case 20-RC-10212. 2 201 NLRB 998. 3 The Administrative Law Judge inadvertently used the word "Supple- mentary" Decision rather than "Supplemental" Decision. SUPPLEMENTAL DECISION STATEMENT OF THE CASE HERMAN CoRENMAN, Administrative Law Judge: This matter was heard by me at San Francisco, California, on February 8, 1974, pursuant to an order of the National Labor Relations Board dated December 6, 1973, reopening the record in the above-entitled matter. On February 22, 1973, the Board had issued a Decision and Order in this proceeding finding that the Respondent, Uniline Corpora- tion, had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act. The Board's Decision and Order was based on a Board certification issued May 5, 1972, in Case 20-RC-10212, following an election conducted on October 14, 1971, certifying the above as the collective-bargaining representative of a certain appropri- ate unit of its employees, without granting the Respondent a hearing on its objections to conduct by the Union affecting the results of the election. The United States Court of Appeals for the Ninth Circuit reversed the Board's Decision and Order herein on the ground that the Board should have granted the Respondent a hearing on the Respondent's Objections to Election 4, 17, and 20. Accordingly, the Board, under date of December 6, 1973, 211 NLRB No. 80 I. DECISIONS OF NATIONAL LABOR RELATIONS BOARD 590 remanded the case for such further proceeding as was appropriate in conformity with the court's order. All parties appeared at the hearing and were afforded full opportunity to introduce oral and documentary evidence relevant to the material issues, to argue orally, and to file briefs. Upon the entire record in the case and based upon the demeanor of the witnesses, and the briefs of the parties, which have been carefully considered, I make the following findings on the Respondent's Objec- tions to Election 4, 17, and 20:1 Objection No. 4 The Union, by its agents and representatives, made material misrepresentations concerning the rate of pay and other benefits currently in effect at other employ- ers' facilities, and other places of employment where this Union and/or other unions have current collective bargaining agreements. To support this Objection 4, the Respondent offered the testimony of Kenneth Foreman, the Respondent 's presi- dent. Foreman credibly testified that on a day or two prior to the October 14, 1971, election, at one of his talks to a small group of about 10 to 15 employees in the factory, 1 of the employees named Elie Rolf 2 "brought up a question or made a statement that the American Toy Company3 was paying $3 .50 an hour as a starting wage for female employees." Foreman testified he told the employees at this meeting that the Uniline Corporation would be competitive in its wages with comparable type businesses in the area. Foreman testified that he had no opportunity before the October 14 election to investigate the truth of Mrs. Rolf's statement concerning the $3.50 rate paid by American Toy Company. Foreman further credibly testi- fied that after the meeting, three or four employees asked him if it was true that the starting wage at American Toy Company for female employees was $3.50 per hour and he replied that he didn't know. John J. Mullen, the union organizer for Local 588, testified credibly that he himself had never discussed anything about American Toy Company with the employ- ees. He further testified credibly that he did not head nor was he a part of any organizing committee although he was aware "there was a group of people in there that was union oriented and wanted ;t." Mullen further credibly and without contradiction testified that he did not "authorize them to say or do anything, and they were not in any way, shape, or form connected with the Union." Mullen conceded that he knew Mrs. Rolf was strong for the Union and that he would assume that Mrs. Rolf would be "chief cook and bottle washer" of the organizing committee. Analysis and Conclusionary Finding I find that there is insufficient evidence to support Objection 4 above set forth. Initially, it is noted that Mrs. I The Respondent's motion to vacate certification, dismiss unfair labor practice charge and cancel hearing on the ground that the Respondent had moved its plant from Union City, California , to Reno, Nevada, was denied on two grounds: namely (1) that it was a matter outside of the Board's Order of Remand, and (2) that a removal of the plant did not moot the question whether the Respondent was violating 8(ax5) in refusing to honor Rolf's statement concerning the $3.50 rate for starting female employees at the American Toy Company was expressed in the form of a question put to Mr. Foreman at the time he was addressing a small group of employees. Moreover, there is no competent evidence in the record that the starting rate for females at American Toy Company is less than $3.50 per hour. Additionally, it is well established by Board decisions that unauthorized remarks made by rank-and-file employees are not attribut- able to the Union. See e.g. Bufkor-Pelzner Division, Inc., 197 NLRB 950; Janler Plastic Mold Corporation, 186 NLRB 540 and 191 NLRB 162. Gruen Watch Company, 108 NLRB 610; Poinsett Lumber & Mfg. Co., 107 NLRB 234; Owen-Corning Fiberglas Corp., 179 NLRB 219, enfd. 435 F.2d 960 (C.A. 4, 1970); Bona Allen, Inc., 190 NLRB 216. Objection No. 17 The Union, by its agents and representatives, threatened employees that if there was no Union and the employees were drafted into the military service, the Company could let them go after their return from active duty and would not have to give them their jobs back. In support of the aforesaid Objection 17, the Employer ,called as a witness, Mr. Timothy Le Vaser, a former employee of the Respondent. Mr. Le Vaser testified that about 2 or 3 days before the election he received a handwritten letter addressed to him personally and a campaign leaflet enclosed in an outside envelope which bore the return address of the Union. The handwritten letter was enclosed in a plain envelope inside the outer envelope and was signed "Local 588 Organizing Commit- tee." Mr. Le Vaser testified he threw the letter away about 2 days after he had received it. In connection with the contents of the enclosed handwritten letter, Le Vaser testified as follows: At the time I was a little worried about being drafted and the note said that if I was drafted, that Uniline Corporation had to give me a job back, but it could be any job they wanted to give me at any rate of pay-the lowest scale-and that if the Union was elected and I became a union member, that if I was drafted when I came back, they would make sure that I got my job back or another job. Le Vaser further testified that the letter recited that: If the Company merged with another Company and changed their name, that they did not have to give me my job back. the Board's certification, including such matters as the duty to bargain over the decision to move and the effects of such move on the employees. 2 Mrs. Rolf was one of a number of employees who had voluntarily formed a group of employees called the "organizing committee.' 3 American Toy Company is located in the Union City, California, area. UNILINE CORPORATION Le Vaser further testified he told several people before the election about the contents of the letter he had received in the mail. On cross-examination, Mr. Le Vaser acknowledged that he understood the letter to represent that the Union would do everything it could to help him get a job back upon his return from military duty to make sure that all of his rights were protected. Le Vaser testified further that the letter said that if the Union was in and he became a union man, that when he came back he could get his same job at Uniline, and if not, they would get him a job some place else. Le Vaser also testified that the matter of reemployment rights of returning veterans was also discussed by Mr. Mullen at the first union organization meeting he attended. Called as a witness for the Union, Mr. John Mullen, union organizer, testified that at a union organization meeting at the church, it is possible that the reemployment rights of returning veterans was discussed but "he cannot recall." Mr. Mullen further testified that he at no time ever told any employees that the Union would guarantee them jobs after they returned from the military and he further testified that he had no knowledge of the letter which Le Vaser testified he had received in the mail, and he did not authorize the writing of the letter or the use of Local 588 stationery by the in-plant organizing committee. Analysis and Conclusionary Finding The testimony of Le Vaser does not support the employee's Objection 17 above set forth that if there was no union then the Company could let returning veterans go and would not have to give them their jobs back. Le Vaser 591 summed up his understanding of the letter's content to be that "he understood the letter to represent that the Union would do everything it could to help him get a job back upon his return from military duty to make sure that all of his rights were protected." Moreover, Union Organizer Mullen credibly testified that he had not authorized the writing of the letter or the use of the Union's outer envelope containing the handwritten letter. Furthermore, there is no evidence that any other union official wrote or authorized the writing of the letter. In any event, I reiterate what I said above that there is no evidence that the letter threatened that in the absence of a union, the Employer would not have to reemploy returning veterans. I conclude that the letter was not written by the Union or its writing authorized by any officer or agent of the Union. Conse- quently, the Union may not be held responsible for its content. I further find that the letter did not assert that the Employer would refuse to take back returning veterans in the absence of a union. I would therefore overrule the Employer's Objection 17. Objection No. 20 The Union, by its agents and representatives, interfered with the conduct of the election by guaran- teeing employees that if they voted for the Union they would receive $3.50 per hour as starting wages. No evidence was produced to support Objection 20 and I would therefore overrule it. RECOMMENDATION It is recommended that Objections 4, 17, and 20 be overruled and that the Board's previous Decision and Order herein be reaffirmed by the Board.