Willey'S Express, Inc.

WILLEY'S EXPRESS Willey's Express, Inc. and International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , Truck Drivers Union Local #170, Petitioner. Case 1-RC-18231 31 May 1985 DECISION AND DIRECTION - BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The National Labor Relations Board has consid- ered determinative challenges in and objections to an election held 13 September 1984 and the hearing officer's report recomrilending- disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 10 for and 10 against the Petitioner, with 2 chal- lenged ballots. The Board has reviewed the record in light of. the Employer's exceptions and brief and the Peti- tioner's answering brief and adopts the hearing offi- cer's findings and recommendations' only to the extent consistent with this Decision and Direction. The Employer - has excepted, inter alia, to the hearing officer's recommendation that its Objection, 11 be overruled. For the-reasons set forth below, we find merit in this exception.2 At all times material herein, the Employer has provided vision and dental insurance to the unit employees. These insurance benefits have been pro- vided through the Employer's participation in the. Northern New England Benefit Trust. One of the trustees for this trust fund is the Employer's presi- dent Gibbons. The trust fund is composed of both employer and union trustees. According to Gib- bons, the unit employees are legitimately covered under this trust fund because the Employer is al- ready a contributor to the fund, through its collec- tive-bargaining agreement with a sister local, Teamsters Local 633, for certain employees of its Concord, New Hampshire location. Gibbons testi- fied that the status of contributor entitles the Em- ployer to include under the fund's coverage the i We adopt the heanng officer's recommendation that the challenges to the ballots cast by employees John Hulse and Robert Richard be over- ruled. We thus agree with the heanng officer's findings that Hulse and Richard are regular employees as opposed to casual employees and are therefore eligible voters Contrary to the Employer's assertions, the record evidence does not support the claim that the parties intended that "regular" in the unit description of the Stipulated Election Agreement be limited to the meaning urged by the Employer Rather, on the basis of the record before us, it appears that the parties' use of the term was the meaning commonly applied by the Board Therefore, like the hearing of- ficer, we have applied the Board's traditional community-of-interests standards in resolving the unit placement issues involving Hulse and Richard - 2 In view of our disposition of this case, we find it unnecessary to ad- dress the Employer's other exceptions and to pass on its remaining objec- tions No exceptions were filed with respect to the heanng officer's rec- ommendations to overrule the Petitioner's objections 631 nonunion employees at its Shrewsbury, Massachu- setts terminal involved herein. ' - The Employer's Objection - II states' - The Union brought pressure upon the North- ern New England Trust to terminate the vision and dental portion of the Employer's insurance program for its non-Union employees which -included •' the 'voters in this election. The Union's effort was designed to disqualify those drivers from such insurance because of their non-Union status and _to present the Union as the only source of comparable insurance cov- erage. - The hearing officer found, as supported by the record, that, approximately a week before the- elec- tion, Union Business Agent Foley became aware that- the unit employees were receiving the. dental and vision insurance benefits. Foley then proceeded to investigate to ascertain if the Employer's partici- pation in this trust - fund -as it 'pertained to its Shrewsbury terminal employees was- legal. After some investigation, Foley told employee Butch Flynn, a few days before the election, that the Shrewsbury terminal employees'were illegally cov-_ ered under the trust fund. Foley' also reported this matter to various union officials, including his su- perior-, Teamsters International Vice President McCarthy. Contrary to Gibbons' testimony, Foley testified that he believed that an employer partici- pating in the fund had to be a party to a collective- bargaining agreement specifically covering the unit employees before insurance benefits, could be ex- tended to them. The hearing officer found that Foley's investiga- tion as to the legality of the Employer's participa- tion in the insurance fund did not interfere with or coerce employees in the exercise of a free choice in deciding whether or not they desire union repre- sentation. On this basis, the hearing officer recom- mended that the Employer's Objection 11 be over- ruled. In its exceptions to the hearing officer's rec- ommendation, the Employer contends that the hearing officer erred when she failed to find Foley's conduct constituted an implied threat to employees that they would lose their current insur- ance coverage unless they chose union representa- tion. We agree. We find that Foley's statement to employee Flynn is coercive and reasonably tended to inter- fere with the election. The statement is objection- able regardless of whether the trust fund coverage for the unit employees is in fact illegal; whether Foley, in another context, otherwise had a right as a union representative to activate an investigation of the Employer's participation in the fund; and 275 NLRB No. 89 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether any action was taken by the trust fund to terminate such benefits at any time. In light of Foley's actions, we find that his state- ment is comparable to, the employer threats found in Sure-Tan.3 In Sure-Tan, the Board adopted the administrative law judge's findings and held that the employer. had illegally threatened its employ- ees-who were undocumented aliens-when it asked them if they had immigration papers or 'green cards."4 The Board found that the employ- er's inquiry conveyed, a thinly. veiled threat to- notify the Immigration Service because they had supported the union.' The employer's inquiry in Sure-Tan occurred shortly after the union had won a representation election ' among these employees. In Sure-Tan, it made no difference that the employ-- ees involved-were undocumented aliens and, in a different - context, the employer's inquiry might have been-proper., What appears critical in Sure-Tan is the timing of the employer's remarks in relation to influencing union support. That same factor ' is present in the instant case. Foley's statement to Flynn admittedly was made a few days before the scheduled elec- tion. The record reveals that Flynn, in turn, re- layed Foley's statement to at least one other em- ployee, Norman Lamothe. Lamothe testified that, prior to the election, he discussed with several other employees the Union's opinion that: they 3 Sure=Tan, Inc, 234 NLRB 1187, 1190-1191 (1978), enfd in relevant part, sub nom. NLRB v Sure-Tan, Inc, 672 F 2d 592 (7th Cir 1982), affd in part, revd in part, and remanded sub nom Sure-Tan, Inc. Y NLRB, 104 S.Ct. 2803 (1984) 4 Ibid were illegally covered under the trust fund. Thus, it was inevitable for these employees to infer that there was only one sure way to keep these insur- ance benefits-vote for union representation. For the reasons above, and noting the closeness of the election, 5 we find, contrary to the, hearing officer, that the conduct of Union Business Agent Foley warrants setting aside the election and di- recting a second election in the event that the re- vised tally of ballots, which includes the ballots of Hulse and Richard, shows that the Union has re- ceived a majority of the valid ballots cast. DIRECTION IT IS DIRECTED that the Regional Director, within 10 days of the date of this Decision and Di- rection, open and count the ballots of John Hulse and Robert Richard, prepare a revised tally of bal- lots, and have it served on the parties. In the event that the revised tally of ballots shows that the Peti- tioner' has not received a majority of the valid bal- lots cast, the Regional Director shall issue a certifi- cation of results pursuant to the Board's Rules and Regulations. In the event that the revised tally of ballots shows that the Petitioner, has received a ma= jority of the valid ballots cast, the following will be applicable. [Direction of second election omitted from publi- cation.] . IT IS 'FURTHER DIRECTED that the case is ' re- manded to the Regional Director for Region I for further processing consistent with this decision. 5 Rexall Corp, 272 NLRB 316 (1984)