Tuf-Flex Glass, a part of Libbey-Owens-Ford Company

TUF-FLEX GLASS Tuf-Flex Glass, a part of Libby-Owens-Ford Compa- ny and Miscellaneous Warehousemen, Airline, Automotive Parts Service Tire and Rental, Chemical & Petroleum, Ice, Paper, & Related Clerical & Production Employees Union, 781, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 13-RC- 15702 June 25, 1982 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On September 15, 1981, the Board issued a Deci- sion' in the above-entitled proceeding in which it ordered that a hearing be held to resolve substan- tial and material factual issues raised with respect to the Employer's Objections 2 and 3 to -n election held on April !0, 1981.2 Pursuant to authority granted it under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel has considered the Employer's Objections 2 and 3, and the Hearing Officer's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and briefs,3 and hereby adopts the i Not reported in volumes of Board Decisions. 2 The election was conducted pursuant to a Stipulation for Certifica- tion U,vn Consent Election. The tally was 14 for, and 8 against, the Peti- tioner; there were 2 challenged ballots, which were not sufficient in number to affect the election results. 3 Although the Employer claims that Jose Gutierrez and Florentino Villalpando are not statutory supervisors, it also contends that the Hear- ing Officer erred in failing to make findings as to their supervisory status. In its exceptions, !he Employer alleged for the first time that, if they were supervisors, their conduct in telling employees how to vote tainted the results of the election. This allegation does not appear in the Employ- er's objections, which alleged only misconduct by agents of the Union. The Board has long held that it will not consider, as objectionable, con- duct which was neither alleged in a timely filed objection nor discovered by a regional director during the course of his investigation of such an objection, unless the objecting party presents clear and convincing proof that the unalleged misconduct not only is newly discovered but also was previously unavailable. Burns International Security Services, Inc., 256 NLRB 959 (1981); Pcrks Food Service, 235 NLRB 1410 (1978); Heckl Mining Company, 218 NLRB 860 (1975). The Employer in this case has not even asserted that the evidence regarding the conduct of Gutierrez and Villalpando was newly discovered, much less previously unavailable. Accordingly. we reject the Employer's allegation as untimely. 4 The Employer contends that the Hearing Officer committed prejudi- cial error by denying its motion to revoke Petitioner's subpoena duces tecum, which required the Employer to produce affidavits and statements taken from employees by its counsel. The Employer claims that these af- fidavits were protected from disclosure by the attorney-client privilege, citing Upjohn Compiny v. United States, 101 S.Ct. 677 (1981) In Upjohn, the Supreme Court held that communications made by nonmanagerial employees to counsel at the direction of their corporate superiors in order to secure legal advice from counsel were covered by the attorney- client privilege; however, the Supreme Court noted that the communica- tions concerned matters within the scope of the employees' corporate dulties which might bind the corporation, that the employees were made av are of the legal implications of the investigation, and that the.commu- r.cations were considered highly confidential when made That is not the 262 NLRB No. 53 Hearing Officer's rulings,4 findings,5 and recom- mendations. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Miscellaneous Warehousemen, Airline, Automotive Parts Service Tire and Rental, Chemical & Petroleum, Ice, Paper, & Related Clerical & Production Employees Union, 781, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and that, pursuant to Sec- tion 9(a) of the Act, the foregoing labor organiza- tion is the exclusive representative of all the em- ployees in the following appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All production and maintenance employees of Tuf-Flex Glass, a part of Libby-Owens-Ford Company at its facility located at 752 Larch Avenue, Elmhurst, Illinois, 60126, but exclud- ing all outside truck drivers, salesmen, profes- sional employees, technical employees, office clerical employees plant clerical employees, guards and supervisors as defined in the Act. case here. The Employer affidavits herein concern statements made by nonsupervisory employees about the upcoming union election; such state- ments clearly are not matters within the scope of these employees' corpo- rate duties which could bind the Employer. Nor is there any evidence in the affidavits or the testimony in this case that the Employer ever made the employees aware of the legal implications of the investigation or of the confidentiality of their statements to counsel. Further, we note that the Hearing Officer required the production of these affidavits only after the direct examination of each affiant called as a witness, for the purpose of cross-examination, rather than in the context of an internal corporate investigation of the facts as in Upjohn. Different considerations would seem to govern the confidentiality of such statements when produced at trial for use in impeaching a witness. Thus, once a witness has testified on direct examination about the matters covered in his affidavit, neither the Employer nor the employee can realistically assert much further interest in keeping the contents of his affidavit confidential. Accordingly, we affirm the Hearing Officer's denial of the Employer's motion to revoke. a The Employer has excepted to certain credibility resolutions of the Hearing Officer. It is the established policy of the Board not to overrule a Hearing Officer's credibility resolutions unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incol- rect. The Coca-Cola Bortting Company of Memphis, 132 NIRB 481, 483 (1961); Stretch-Ter Co., 118 NLRB 1359, 1361 (1957). We find no suffi- cient basis for disturbing the credibility resolutions in this case. In discrediting certain testimony by Jose Gutierrez and Pedro Sanchez about threatening statements made by Salvador Arias, the Hearing Offi- cer noted that those portions of their testimony were inlconsistent with their Board affidavits; however, the Hearing Officer also noted that San- chez' discredited testimony was not corroborated by Gutierrez' credited testimony or by the Employer affidavits taken from Sanchez and that Gutierrez' discredited testimony was inconsistent with both his own and Sanchez' Employer affidavits. Further, the Hearing Officer found that their discredited testimony was given in a confusing, imprecise, and con- clusionary manner. Inasmuch as the Hearing Officer relied on other inde- pendent grounds as a basis for discrediting this testimony, we find it un- necessary to rely on the Board affidavits in adopting his credibility find- ings. 445