Towne Bus LLC

TOWNE BUS LLC 350 NLRB No. 91 1253 Towne Bus LLC and Local 854, International Broth- erhood of Teamsters, Petitioner Towne Bus LLC and Amalgamated Transit Union Local 1181-1061, AFL–CIO, Petitioner. Cases 29–RC–11389 and 29–RC–11390 September 12, 2007 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN BATTISTA AND MEMBERS KIRSANOW AND WALSH The National Labor Relations Board, by a three- member panel, has considered objections to an election held December 8, 2006, and the hearing officer’s report recommending disposition of them, pertinent portions of which are attached. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 5 votes for Petitioner Amalgamated Transit Union Local 1181-1061, 36 votes for Petitioner Local 854, In- ternational Brotherhood of Teamsters, and 80 votes against the Petitioners, with 6 challenged ballots, an in- sufficient number to affect the results. The Board has reviewed the record in light of the ex- ceptions and briefs, has adopted the hearing officer’s findings and recommendations1 and finds that the elec- tion must be set aside and a new election held. 1 In the absence of exceptions, we adopt pro forma the hearing offi- cer’s recommendation to overrule Petitioner Amalgamated Transit Union Local 1181-1061’s Objection 1. To the extent that the hearing officer stated in her report and recom- mendations on objections that “there is no evidence that the employee manual contained any changed terms or conditions of employment, or promised any new benefits,” we note that the report, read in its entirety, clearly indicates that the hearing officer found that the employee man- ual contained a “promise of future benefits.” We agree with this find- ing, and rely on it in adopting the hearing officer’s report and recom- mendations. Specifically, the record shows that the employee manual issued on December 1, 2006, purported to set forth the existing wage rates and health insurance premium contributions of all of the Em- ployer’s employees as of that date. The employee manual also pro- vided for future increases to certain benefits: a January 1, 2007 5- percent increase in Employer contributions to employee medical insur- ance premiums and a June 30, 2007 pay-rate increase for all job classi- fications. We are satisfied that these promised benefits represented a future change in the employees’ terms of employment. We also note that the Employer has failed to demonstrate that the fu- ture benefits promised in the employee manual were “part of an al- ready-established company policy.” See Mercy Hospital Mercy South- west Hospital, 338 NLRB 545 (2002) (quoting American Sunroof Corp., 248 NLRB 748 (1980), modified on other grounds 667 F.2d 20 (6th Cir. 1981)). Further, for the reasons stated in her report, we agree that “the timing of the release of the employee manual creates an infer- ence that the Employer was trying to influence employee voting,” and that “the Employer failed to rebut this inference.” Finally, we disavow the hearing officer’s characterization of Dentech Corp., 294 NLRB 924, 965 (1989), as standing for the proposition that “the distribution of [Direction of Second Election omitted from publica- tion.] CHAIRMAN BATTISTA, dissenting. The objecting party has not met its burden of showing that the manual represented a change in terms of em- ployment. In order to demonstrate a change, one must show the prior terms and then compare these to the as- sertedly new terms. The manual sets forth the assertedly new terms, but the record fails to disclose the prior terms. Thus, there has been no showing of a change.1 My colleagues acknowledge the hearing officer’s ex- plicit statement that “there is no evidence that the em- ployee manual contained any changed terms or condi- tions of employment, or promised any new benefits.” They then note that the hearing officer found that the manual contained a “promise of future benefits.” The prior sentence does not support the latter one. In short, the evidence does not support the finding. My col- leagues refer to an increase in employer contributions to employee health insurance (slated for January 1, 2007) and an increase in pay (slated for June 30, 2007). How- ever, there is no indication that these increases were not previously scheduled to occur on those dates. This would explain the hearing officer’s explicit statement that there is no evidence of change. It is, of course, the Objecting Party’s burden to show a change. HEARING OFFICER’S REPORT AND RECOMMENDATIONS ON OBJECTIONS . . . . Objections No. 2, 3, and 4: In these objections, Petitioner 1181 essentially contended that during the critical period, the Employer promised and granted benefits to its unit employees in order to induce them to vote against Petitioner 1181. As an offer of proof Petitioner 1181 provided the 2004–2008 collective-bargaining agreement between Local 1181 and WE Transport, which purportedly has the same family owner as the Employer herein,7 and a docu- ment entitled, “Waverly Avenue employee manual.” At the hearing, Petitioner 1181 again offered these documents to sup- port its objections. The Employer denied that it promised or granted any benefits during the critical period. The Regional Director, in his report, directed that Petitioner 1181’s Objection Nos. 2, 3, and 4 be set for hearing regarding only the timing of the release of the employee manual, whether the manual had an employee manual during an organizational campaign is coercive and violates Section 8(a)(1) of the Act.” 1 The prior terms of the one employee about whom we do know, Alyce Weitzel, appear to be the same as those set forth in the manual. 7 Weitzel testified that “The Marksons” own both WE Transport and Towne Bus; she worked for WE Transport at the Smithtown yard from 1998 to 2002, when she moved to the Waverly yard location of Towne Bus in a seamless transfer of wages and benefits. (Tr. 11–14; 34.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254 been previously distributed, and whether it contained any prom- ised changes in terms and conditions of employment. Weitzel, the only witness at the hearing, testified that she re- ceived her first and only copy of the “Waverly Avenue em- ployee manual” prior to the election. (Tr. 20–21; 32; P Exh. 3.) Weitzel had to go to the office to sign that she had received the manual, and it was handed to her. She had never before re- ceived a copy of this manual, or one like it. At the time she was given the manual, no representations were made to her regarding its contents. Finally, she testified that her terms and conditions of employment had not changed prior to or subse- quent to the election, she was told by management that they would not change, and her terms and conditions of employment have mirrored those found in Petitioner, 1181’s collective- bargaining agreement with WE Transport since 2002,8 when she transferred to the Waverly Avenue location. Coincidentally or not, the cover of the employee manual states “July 1, 2004– June 30, 2008,” identical to the effective dates of Petitioner 1181’s collective-bargaining agreement with WE Transport. (Tr. 11–15; 21–22; 30; 32–33; P. Exhs. 2 and 3.) Weitzel read the employee manual after she received it and confirmed that it accurately represented her terms and conditions of employ- ment, and there was nothing in it that was new or different. (Tr. 35.) The Employer failed to present any witnesses to ex- plain the timing of the release of the employee manual. It is not objectionable for an Employer to choose to provide organized and nonorganized employees with identical or simi- lar wages and benefits, as long as it does not make changes to those terms and conditions of employment during the critical period. See: Allegany Aggregates, Inc., 327 NLRB 658, 659 (1999), where announcement of showup pay policy during the critical period was not objectionable because it was not a new benefit. Here, there is no evidence that the employee manual contained any changed terms or conditions of employment, or promised any new benefits. In fact, Weitzel testified that she read the manual, and it was accurate, and management told her that there were not going to be any changes, and to her knowl- edge, there were none. However, the only evidence in the re- cord regarding the release of the employee manual is that it occurred during the critical period, and it had not been previ- ously distributed. The Employer was given full notice and opportunity to explain the timing of the release of the docu- ment, as set forth in the Regional Director’s report. In addition, 8 Petitioner 1181 alleged for the first time at the hearing that the Em- ployer changed the charter posting procedure, however, Weitzel testi- fied that she is not on the charter list. (Tr. 22.) In addition, Weitzel testified that the easel on which charters were posted was in the trailer where the drivers’ room was located during the building of the new Waverly Avenue building, but then it was not in the drivers’ room anymore once they moved into the new building in the summer of 2006. This is prior to the critical period. (Tr. 23–24.) In addition, there is nothing in the employee manual regarding an easel, or the posting of charters on an easel. Weitzel testified that there were no changes to her terms and conditions of employment in the employee manual. (Tr. 35.) In any event, I do not have the authority to consider this late objection. See Precision Products, 319 NLRB 640, 641 (1995) (hearing officer lacks the authority to “consider issues that are not reasonably encompassed within the scope of the objections that the Regional Director set for hearing.”) the hearing officer stated on the record that evidence regarding the timing of the release of the document was the Employer’s burden and had not been addressed. The Employer declined to present evidence in this regard. (Tr. 38–40.) Documents such as the employee manual, handed out during the critical period, have been found objectionable when they contain changes in terms and conditions of employment. See Southgate Village, Inc., 319 NLRB 916, 925 (1995), where the Board found that the timing of the distribution of a new em- ployee manual 4 days before the election, announcing changes in benefits, was timed by the Employer “in order to heighten the impact of those benefits and thereby influence the outcome of the election.” See also Sun Mart Foods, 341 NLRB 161, 162 (2004), where the Board “will infer that an announcement or grant of benefits during the critical period is objectionable; however, the employer may rebut the inference by establishing an explanation other than the pending election for the timing of the announcement or the bestowal of the benefit.” (citing Star, Inc., 337 NLRB 962, 963 (2002)). Here, the Employer distrib- uted a manual during the critical period that not only mirrors its collective-bargaining agreement at its organized facility, high- lighting, in effect, that no union is necessary to obtain the same benefits, but most importantly, also contains the same term as the collective-bargaining agreement. While the Employer is within its rights to mirror an organ- ized facilities’ wages and benefits, and compare the benefits received in the organized facility versus the nonunion facility, here, it also included a term for the continuation of those mir- rored benefits for 18 months after the election, the same term as the collective-bargaining agreement. See TCI Cablevision of Washington, 329 NLRB 700 (1999), citing Walgreen Co., 203 NLRB 177, 181 (1973) (where the employer compared the wages and benefits received in its nonunion facilities with those received in its organized facilities, which the Board found was simply a recitation of “historical fact.”). Providing a term for the receipt of identical benefits that extends well into the future, in my view, amounts to a promise that benefits over the next 18 months will continue to be identical to the organized facilities’ benefits, and increase as those at the organized facilities in- crease. In this regard, I find that both TCI Cablevision of Wash- ington, supra, and Viacom Cablevision, 267 NLRB 1141 (1983), which was relied on by the Board in TCI Cablevision of Washington, are distinguishable from the instant case. The Board found that the employer in Viacom Cablevision “dis- claimed any promise of what the employees might receive in the future.” TCI Cablevision of Washington, supra at 700. Here, the Employer, by telling the employees on the face of the document that their benefits will continue for the next year and a half to mirror those found it its collective-bargaining agree- ment with Petitioner 1181 at another facility, is making a prom- ise to employees about future benefits. Because the Employer’s manual contained a promise of fu- ture benefits, the timing of the release of the employee manual creates an inference that the Employer was trying to influence employee voting. The Employer failed to rebut this inference. I also note that the evidence shows that the manual had never before been distributed, which I find further supports the infer- ence. Absent any evidence that the manual had previously been TOWNE BUS LLC 1255 distributed to employees with a 4-year long term, or that there was some compelling reason to distribute it during the critical period, the inference that the Employer was trying to influence the outcome of the election by the distribution of the manual remains unchallenged. Finally, the Board has found that the distribution of an em- ployee manual during an organizational campaign is coercive and violates Section 8(a)(1) of the Act. Dentech Corp., 294 NLRB 924, 965 (1989) (where the Board adopted the adminis- trative law judge’s findings that an “employee handbook was issued to employees after the Company knew of union organ- izational activity among its employees, and that it was issued to discourage such union organizational activity.”) Similarly, I find that the unrebutted inference herein that the Employer timed the release of the employee manual to discourage em- ployees from voting for the union, is objectionable conduct sufficient to overturn an election. Accordingly, I recommend that the portions of Objection Nos. 2, 3, and 4, concerning the unexplained and potentially vote-influencing timing of the first release of the employee manual, and the promise of benefits contained therein, are sus- tained. The remaining portions of Objections 2, 3, and 4 are overruled. . . . .