Albuquerque Publishing Co.

National Labor Relations Board - Board Decisions

Jul 28, 1975

219 N.L.R.B. 631 (N.L.R.B. 1975)

ALBUQUERQUE PUBLISHING COMPANY 631
Albuquerque Publishing Company and Chauffeurs,
Teamsters & Helpers, Local Union 492, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America.
Cases 28-CA-3359, 28-CA-3359-2, and 28-RC-
2819
July 28, 1975
DECISION, ORDER SEVERING CASES, AND
CERTIFICATION OF RESULTS OF ELECTION
BY CHAIRMAN MURPHY AND MEMBERS KENNEDY AND
PENELLO
Pursuant to a stipulation for Certification Upon
Consent Election, a secret ballot election was con-
ducted on September 25, 1974,' among the employ-
ees in the stipulated unit .2 The tally of ballots fur-
nished the parties showed that of approximately 70
eligible voters 64 cast valid ballots, and of the valid
ballots cast 29 were for, and 34 against , the Peti-
tioner. There was one challenged ballot, an insuffi-
cient number to affect the results of the election.
Thereafter, on October 1, the Petitioner filed time-
ly objections to conduct affecting the results of the
election.' Based on his investigation of the objec-
tions, the Regional Director issued a report and no-
tice of hearing on November 14, wherein he de-
termined that there were "substantial issues of fact
and credibility" concerning the objections which re-
quired a hearing. The hearing was held at Albuquer-
que, New Mexico, on December 19 and 20 before
Hearing Officer Peter N. Maydanis. The hearing
dealt solely with the conduct specified in the
Petitioner's objections.
On November 14-the same day on which the Re-
gional Director's Report on Objections and Notice of
Hearing issued-the Petitioner filed a charge in Case
28-CA-3359, and on November 20 filed a second
charge in Case 28-CA-3359-2. Both charges alleged
that on dates after the election had been held the
Employer engaged in certain conduct violative of
Section 8(a)(3) and (1) of the Act. However, in inves-
tigating the charges and in deciding their merit, the
Regional Director discovered evidence which he
1 All dates are 1974 unless otherwise indicated
2 The stipulated unit is as follows: All circulation and dock employees
including district supervisors , relief men, dealer men , dock men, office
clerks and field representatives ; excluding office clerical employees , profes-
sional employees , guards , and supervisors as defined in the Act and all other
employees.
Petitioner 's objections alleged that during the critical period the Em-
ployer ( 1) threatened to withdraw certain fringe benefits should the Union
win the election , and (2) indicated it would refuse to bargain in good faith
with the Petitioner, should Petitioner win the election.
deemed sufficient to indicate that certain conduct vi-
olative of Section 8(a)(1) of the Act occurred on
dates falling within the critical preelection period.
Accordingly, on January 29, 1975, the Regional Di-
rector issued a complaint in Cases 28-CA-3359 and
28-CA-3359-2, alleging, inter alia, that on dates fall-
ing within the critical period the Employer (1) made
certain statements which created the impression of
surveillance, and (2) threatened an employee with a
discharge or reassignment to a lower paying position
if that employee did not cease engaging in union ac-
tivity.
On February 14, 1975, the Regional Director is-
sued a Supplemental Report on Objections and an
order consolidating the unfair labor practice and the
representation cases and issuing a notice of hearing
on both. In the order consolidating the cases, the Re-
gional Director provided that the Administrative
Law Judge assigned to hear and to decide the issues
raised in the consolidated proceeding should also de-
cide whether any part of the alleged unlawful con-
duct described in the complaint would warrant set-
ting aside the election. The Regional Director also
recommended to the Board that, pending the disposi-
tion of the issues tendered in the consolidated pro-
ceeding, the Board defer ruling on the election objec-
tions referred to the Hearing Officer in Case
28-RC-2819 under the November 14 notice of hear-
ing. Thereafter, the Employer filed with the Board
timely exceptions together with a supporting brief .4
On March 14, 1975, the Hearing Officer issued his
report on the election objections which had been re-
ferred to him for hearing by the November 14 notice
of hearing, supra. He recommended therein that all
such objections be overruled, and that the results of
the election be certified. Thereafter, Petitioner filed
timely exceptions to the Hearing Officer's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in
these proceedings in light of the Regional Director's
Report and Supplemental Report on the election ob-
jections, the Hearing Officer's report on objections to
conduct affecting the results of the election, the ex-
ceptions and supporting brief filed by the Employer
to the Regional Director's Supplemental Report on
the election objections, and the exceptions filed by
the Petitioner to the Hearing Officer's report on the
election objections. For the reasons set out below,
the Board finds merit in the exceptions filed by the
Employer to the Regional Director's Supplemental
Report on Objections, and has decided to (1) reject
° As a result , the Regional Director postponed the consolidated hearing.
219 NLRB No. 131
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director's recommendation as set out in
his Supplemental Report on Objections and to sever
Cases 28-CA-3359 and 28-CA-3359-2 from Case
28-RC-2819; (2) resolve the objections to the elec-
tion solely on the basis of that part of the alleged
objectionable conduct described in the Regional
Director's initial report on objections and referred by
the Regional Director to the Hearing Officer for
hearing and resolution ; and (3) adopt the Hearing
Officer's findings and recommendations with respect
to such objections.
1. In agreement with the Employer's contentions,
we find that the Regional Director erred in consoli-
dating the cases herein when , during his investigation
of the charges of unfair labor practices filed subse-
quent to his completion of the investigation of objec-
tions to the election and subsequent to his issuance
of a notice of hearing on objections , he uncovered
other conduct which arguably interfered with the re-
sults of the election. That additional conduct is de-
scribed in the Regional Director 's Supplemental Re-
port on Objections and, as there noted, evidence of
its occurrence is disputed. The Regional Director ac-
cordingly proposes that, although the only issues
raised by the election objections as described by the
Regional Director 's initial Report on Objections are
now ripe for resolution, we should not, if we find
those objections to be without merit, certify the elec-
tion results until a further hearing is held to resolve
the disputed issues concerning the newly discovered
alleged objectionable conduct, even though the latter
was never made the subject of any formal objec-
tions.3 We find no warrant for that proposal.
Inordinate delays in the determination of represen-
tation matters are not to be encouraged; and clearly
our concern that the results of an election reflect the
free choice of the voters should not blind us to the
desirability of confining our inquiry concerning al-
leged election interference to those matters specified
and/or uncovered during a duly conducted investi-
gation of timely filed objections. Precedent for so
doing is provided by the recently decided Hecla Min-
ing Company case , 218 NLRB No. 61 (1975). There,
the Board refused to consider the effect on an elec-
3 It bears mentioning that the Employer conduct referred to in the unfair
labor practice charges, supra, was described as having occurred on dates
succeeding the election . National Electric Coil Div. McGraw -Edison Compa-
ny, 184 NLRB 691 (1970), the case cited by the Regional Director in support
of his proposal here , is clearly distinguishable . There , the conduct othei
than that specified in the objections timely filed by the parties was uncov-
ered in the course of a Regional Director 's investigation of contemporane-
ously pending unfair labor practice charges and before the investigation of
the election objection had been completed.
tion of allegedly objectionable conduct which had
been brought to a Regional Director's attention by
the filing of supplemental objections after the Re-
gional Director had completed the investigation of
timely filed objections and while the issues concern-
ing their merit were pending before the Board. We
perceive no distinction of substance in the situation
here before us, where the supplementally alleged
conduct came to the Regional Director's attention in
his investigation of unfair labor practice charges filed
long after his investigation of the timely filed objec-
tions had been completed-and even after the con-
clusion of the hearing he directed to resolve disputed
questions of fact relevant to those timely filed objec-
tions. The reasons of policy impelling the Board's
decision to refuse consideration of the late discov-
ered alleged objectionable conduct in Hecla apply
here with equal, if not greater, force.
We shall therefore sever Cases 28-CA-3359 and
28-CA-3359-2 from Case 28-RC-2819, remand the
unfair labor practice cases to the Regional Director
for such action as he deems appropriate, and confine
our resolution of the election issues to those de-
scribed in the Regional Director's initial report on
the timely filed objections and the Hearing Officer's
recommendations on the same.
With respect to the objections in Case 28-
RC-2819, the Board, having considered the record in
light of Petitioner's exceptions, hereby adopts the
Hearing Officer's findings 6 and recommendations.
We shall, therefore, certify the results of the election
held in Case 28-RC-2819.
ORDER
It is hereby ordered that Cases 28-CA-3359 and
28-CA-3359-2 be, and they hereby are, severed from
Case 28-RC-2819.
IT IS FURTHER ORDERED that Cases 28-CA-3359
and 28-CA-3359-2 be, and they hereby are, remand-
ed to the Regional Director for such action as he
deems appropriate and consistent with the Board's
Rules and Regulations, Series 8, as amended.
6 The Petitioner 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 the relevant evidence convinces us that the resolutions are incorrect. The
Coca Cola Bottling Company of Memphis, 132 NLRB 481, 483 (1961);
Stretch-Tex Co., I18 NLRB 1359, 1361 (1957). We find no sufficient basis
for disturbing the credibility resolutions in this case.
ALBUQUERQUE PUBLISHING COMPANY 633
CERTIFICATION OF RESULTS OF ELECTION housemen & Helpers of America, and that said labor
organization is not the exclusive representative of all
It is hereby certified that a majority of the valid the employees, in the unit herein involved, within the
ballots have not-been cast for Chauffeurs, Teamsters meaning of Section 9(a) of the National Labor Rela-
& Helpers, Local Union 492, affiliated with Interna- tions Act, as amended.
tional Brotherhood of Teamsters, Chauffeurs, Ware-