Liquid Transporters, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 420 Liquid Transporters, Inc., a wholly owned subsidiary of Trimac Transportation, Inc. and Interna- tional Brotherhood of Teamsters, Local 107, AFL–CIO, Petitioner. Cases 4–RC–20215 and 4– RC–20216 September 28, 2001 ORDER DENYING REVIEW BY MEMBERS LIEBMAN, TRUESDALE, AND WALSH The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel, which has considered the Employer’s request for review of the Regional Director’s Supplemental Decision on Objections and Certification of Representative and Peti- tion to Revoke the Certification (pertinent portions of which are attached as an appendix). The request for re- view and petition to revoke certification are denied as they raise no substantial issues warranting review. In denying review with respect to Objection 1, we find that the Employer is precluded from objecting to the Petitioner’s use of Patrick Webb as an observer. Objection 1 alleges that Webb is a statutory supervisor and that the Union’s use of him as an election observer constitutes grounds for setting aside the election. As the Employer notes, the Board recently overruled precedent and held that a union’s use of a statutory supervisor as an election observer constitutes objectionable conduct. Family Service Agency, 331 NLRB 850 (2000). It is well-established Board law, however, that an employer must raise the alleged supervisory status of a union’s election observer at the time of the preelection confer- ence; otherwise, any such objection is precluded, and the employer may not raise the issue for the first time in its post-election objections. See Monarch Building Supply, 276 NLRB 116 (1985); Mid-Continent Spring Co. of Kentucky, 273 NLRB 884, 887 (1984); and Howard Coo- per Corp., 121 NLRB 950 (1958). Further, the Employer included Webb as an eligible voter on its Excelsior list and did not challenge his vote in the election. Also, at the preelection hearing in Case 4–RC–19705 (which was incorporated into the record here), and in the preelection hearing in this case, the Em- ployer never contended that Webb was a statutory super- visor and did not request review in either case of the Re- gional Director’s inclusion of Webb in the unit. Finally, in its Order dated July 27, 2001, the Board specifically found that Webb did not exercise statutory supervisory authority, and the Employer failed to file a motion for reconsideration of that finding. Accordingly, we find that the Employer may not now raise the issue of Webb’s supervisory status as a basis to contest the election.1 APPENDIX SUPPLEMENTAL DECISION ON OBJECTIONS TO ELECTION AND CERTIFICATION OF REPRESENTATIVE Pursuant to Section 102.69(c) of the Board’s Rules and Regulations, an investigation of the objections was conducted under my supervision. The objections and supporting evidence submitted by the Employer have been carefully considered. The investigation disclosed and the undersigned reports as fol- lows:1 Objection 1 This objection concerns the Petitioner’s use of Patrick Webb as an election observer. In support of this objection, the Em- ployer submitted an affidavit of Dispatcher Corinne Anne Coo- per stating that Webb served as the Petitioner’s observer during the second voting session of the July 27, 2001 election. The Employer argues that Webb is a supervisor within the meaning of Section 2(11) of the Act, and that his use as an observer was improper under the Board’s decision in Family Service Agency, 331 NLRB 850 (2000). The Employer also argues that a collo- quy during the course of the representation hearing was insuffi- cient to constitute a stipulation that Webb is not a statutory supervisor. Notwithstanding the Employer’s contentions concerning Webb’s status, the Board, in denying the Employer’s Request for Review in these cases, specifically held that Webb “does not exercise supervisory authority in the interest of the Em- ployer.” Board Order dated July 27, 2001 fn. 1 (unpublished). Accordingly, as it has been determined that Webb was an eligi- ble voter and not a statutory supervisor, I find that Objection 1 lacks merit. 1 Although Member Truesdale dissented in Family Service Agency, he agrees with his colleagues that the Employer has waived its right to file an objection to the election under the holding in that case. 1 It is well established that it is the duty of the party filing objections to furnish evidence sufficient to establish a prima facie case in support of the objections before the Regional Director is required to investigate the objections further. See Aurora Steel Products, 240 NLRB 46 fn. 3 (1979); Allen Tyler & Son, 234 NLRB 212 fn. 2 (1978). For the rea- sons set forth herein, I have concluded that the evidence proffered by the Employer in support of its objections to the election does not pro- vide a basis for conducting a hearing in this matter. In considering the objections, I have presumed that the evidence presented by the Em- ployer is true. Moreover, presuming the truth of the Employer’s evi- dence and contentions, I have concluded as a matter of law that the alleged objectionable conduct does not warrant setting aside the elec- tion. Accordingly, I have concluded that no hearing is necessary to resolve these objections. Sec. 102.69(c) of the Board’s Rules and Regulations; Park Chevrolet-Geo, Inc., 308 NLRB 1010 fn. 1 (1992). 336 NLRB No. 34