Bill's Institutional Commissary Corp.

National Labor Relations Board - Board Decisions

Dec 27, 1972

200 N.L.R.B. 1148 (N.L.R.B. 1972)

1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bill's Institutional Commissary Corporation and Gen-
eral Truck Drivers, Chauffeurs, Warehousemen &
Helpers, Local 270 , a/w International Brotherhood
of Teamsters, Chauffeurs , Warehousemen & Help-
ers of America, Ind Case 15-CA-3239
December 27, 1972
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 23, 1972, Administrative Law Judge 1
Thomas A Ricci issued the attached Second Supple-
mental Decision2 in this proceeding Thereafter, the
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety
CHAIRMAN MILLER, concurring separately
I concur in the result herein on the basis of the law
of the case, and primarily because I believe it is time
to end this fruitless litigation
Over 5 years ago, on September 29, 1967, an
election was held in which the Union received a
majority of the valid votes cast
We are here trying to evaluate the results of a
hearing held in March 1972, pursuant to an October
1971 order of remand by the Fifth Circuit Court of
Appeals, in which the employees were testifying as to
whether they knew-in 1967-that certain wage rates
set forth in a preelection union flyer were taken from
a union contract in New York or whether they might
have believed they were from a contract in the New
Orleans area We are supposedly enlightened by
testimony by one employee that he has no recollec-
tion of the union letter at all, and by two employees
that no one told them where the wage rates applied
And so, the Administrative Law Judge, in some
doubt about just what it was the court wanted
determined, concluded that three votes are apparent-
ly questionable in the view of the court, the election
is under a cloud, the Respondent's refusal to bargain
during these 5 years wasjustified, and the complaint
should be dismissed
And so, a work force which thought it was
effectively choosing a bargaining representative in a
secret-ballot election 5 years ago is now told that it
didn't, and their freedom of choice in the matter is
supposed to have been vindicated I fear that instead
the practical result is that freedom of choice has been
frustrated by a highly technical application of a
principle which ought to be applied only in much
more aggravated cases than this one
This kind of frustration by delay and belabored
examination of minutiae seems to be what too
frequently results when we-or, as here, the courts
-insist too upon purist a view of what parties may
be permitted to say in election campaigns
Particularly in the face of recent preliminary
empirical studies which appear to show that "for the
great bulk of employees the campaign may not be
significant in altering an initial predisposition to vote
for or against union representation,"4 this kind of a
belated microscopic examination of alleged cam-
paign impurities would seem to me to have little to
do with effective and practical administration of the
Act
But such is the law of this case , and to prolong the
litigation further in yet another lengthy attempt to
persuade the court of the futility of this kind of
exercise would also add little to an effectuation of the
Act's purpose so far as these long-waiting parties are
concerned
And so, I reluctantly concur
i The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 On June 14 1968 the Board issued its original Decision and Order
herein (171 NLRB 1427) finding that Respondent had violated Sec 8(a)(5)
of the Act Thereafter, on November 10, 1969, the United States Court of
Appeals for the Fifth Circuit issued its opinion (418 F 2d 405) remanding
the case to the Board On November 17 1970, the Board issued its
Supplemental Decision and Order ( 186 NLRB 597) again finding and
concluding that Respondent had violated Sec 8 (a)(5) of the Act Thereafter
on October 26, 1971 the court of appeals again remanded the case to the
Board for further proceedings in conformity with the court s remand (449
F 2d 694)
3 We find it unnecessary to pass on the Administrative Law Judge s
discussion regarding the procedural question as to the burden of proof
Rather in agreement with the Administrative Law Judge, we are of the
opinion that the principle of law applied by the Administrative Law Judge
conforms to the law of the case under the court of appeals remand
4 The National Labor Relations Board Voting Study A Preliminary
Report The Journal of Legal Studies published by the University of
Chicago Law School Volume I (2) June 1972, 233 p 241
SECOND SUPPLEMENTAL DECISION
THOMAS A Ricci, Trial Examiner This is a refusal-to-
bargain case, in which, following a Board election and an
f
200 NLRB No 154
BILL'S INSTITUTIONAL COMMISSARY CORP 1149
admitted refusal by the Respondent to recognize the
certified Union , the Board found a violation of Section
8(a)(5) of the Act and ordered the Company to bargain In
enforcement proceedings , the United States Circuit Court
of Appeals for the Fifth Circuit denied enforcement and
remanded the case for hearing Following a remand
hearing, the Board reaffirmed its unfair labor practice
finding and again ordered the Respondent to bargain 186
NLRB 597 Again in enforcement proceedings the court
remanded the case for taking further testimony 449 F 2d
694 The hearing was held at New Orleans , Louisiana, on
March 23, 1972, all parties were represented , and the
General Counsel and the Respondent thereafter filed briefs
with the Trial Examiner i
FINDINGS AND RECOMMENDATIONS
The Issue
This entire proceeding , now spanning a 5-year period,
arose from, and at every stage reverted back to, a letter
sent the employees by the Union a week before the
election Ten names were on the eligibility list, the ballot of
one man-Ford-was challenged and never opened,
another man-Le Doux-did not present himself to vote
Of the remaining eight , six cast votes for the Union and
two against The letter informed the employees of the exact
wage scale appearing in a contract then in effect between
the Union and another employer engaged in the same kind
of business , and added this was "what you should be
getting", "this could be yours " The letter did not specify
that the employer whose contract wages were set out in the
letter operated in the New York City area , and not in New
Orleans
The Respondent objected to the results of the election in
the original representation proceeding on the ground that
the letter misled the employees as to what a vote in favor of
the Union would mean, it reiterated the same position to
the Board in the unfair labor practice proceeding and now
presses it before the court With knowledge that the letter
in question referred to New York City wages and not New
Orleans conditions, both the Regional Director and the
Board found nothing improper in it as union campaign
literature
The court took a different view The language of the two
remand opinions can be read in more than one way, with
the result that there is an ambiguity as to what the issue to
be decided now is More important , it is not clear what the
burden of proof is , and where it lies And perhaps the
illusiveness of the question to be decided, and the proper
method for resolving it, is inevitable in the special
circumstances of the case as it now stands What the
Respondent wanted, and was denied until it reached the
circuit court, was a hearing on its objections But this is an
unfair labor practice proceeding In a substantial sense, the
hearing which the remand calls for is in the nature of a
supplemental representation case hearing Viewed in this
light, the burden of proof rests upon the party raising the
objections to the results of the election , here the Respon-
dent In the context of an unfair labor practice case, the
i A motion by the Respondent, unopposed to correct a typographical
error in the transcript is hereby granted
remand could be viewed as an opportunity for either the
Respondent to further an affirmative defense , with the
burden of proof still resting upon it, or for the General
Counsel to advance his burden to establish the merits of
the complaint
The problem is compounded by the nature of the
substantive question itself-did distribution of the Union's
letter improperly interfere with the election The Board
overruled the objection with knowledge that the wages
there set out applied to another part of the country This
means that, in the Board's view, even assuming the
employees believed the wages were being paid by some-
body in New Orleans , the letter was not reason for setting
the election aside In contrast , the remand several times
refers to the letter as "misrepresentation ," indeed as
"prima facie misrepresentation " And the Court phrased
the purpose of the remand as "to determine the effect to
which the Union's misrepresentation affected the election,"
to inquire into "the impact of the misrepresentation " Does
this mean investigation in the representation case sense,
that unless the Company proves affirmatively the employ-
ees were in fact misled the results of the election stand9
Counsel for the Respondent reads the remand order
differently, at the start of the hearing, he passed , arguing it
was up to the General Counsel to establish anew the
validity of the Board's certificate His position was not
entirely without merit, for, if the letter produced by the
Company in support of its objections is "prima facie
misrepresentation," it means the burden, whatever it is,
shifts to the other side
In any event , regardless of where the burden of proof
may lie, the ultimate objective of the remand hearing
remains unclear If all the eligible employees knew it was
New York wages the Union showed them, it seems the
court would enforce the Board's bargaining order now But
is it a necessary prerequisite , before the court will deem the
election results valid, that it be shown affirmatively that all
the employees were in fact correctly informed9 If it should
develop that a number of employees were never told the
truth of the matter, would the court set the election aside
without more9 Again, assuming ignorance by the employ-
ees, need it be shown that the "misrepresentation"
influenced them to vote for the Union-the "impact"
idea-before the certificate is rejected9
The Question as Viewed by the Parties, and the
Facts
Regardless of these considerations , the General Counsel
and the Respondent now are in agreement as to the
purpose of the court's second remand and as to the
pinpointed question which will finally decide this one case
Testimony at the first hearing on remand showed that
some employees whose votes were counted in the election
were told, at a preelection union meeting, that the wages
detailed in the letter were in fact being paid in the New
York City area It is now stipulated that, of the eight
employees who cast valid ballots, four attended this
meeting Did the other four also know, before voting, the
This report is to be read together with the Supplemental Decision herein
issued on June 26 1970
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truth of the matter9 On this specific question , the court
said, "It is of critical importance to know if the workers not
present at this meeting had otherwise learned the truth
concerning the contents of the letter " It said the issue is
"independent knowledge on the part of the non-attending
employees "
In his brief the General Counsel says, "The sole issue
herein is whether four employees who were eligible voters
in the election in this case had independent knowledge of
the fact that a wage scale attached to a union letter to
employees was from a contract covering employees in
effect in an area other than in New Orleans " The
Respondent in substance takes the same position I see no
reason for not taking the same view as to what the court
now desires be decided
The Respondent called three persons who voted in the
election , but none of whom had been at the union
meeting-Parent , Simon, and Tilley Parent, no longer with
the Company , had no recollection of the letter at all But it
is a fact he did receive a copy at the time because the
earlier record otherwise establishes it was mailed to all
eligible employees Simon, still employed , recalled the
letter and its attachment , he said there was talk about it
among the employees , but that no one ever told him the
wage scale did not apply to the New Orleans area He
remembered somebody telling him "these were the wages
that we would be getting " Tilley also remembered the
letter He too testified no one told hum anything about
where the rates applied , and that it had been his unpression
they applied in New Orleans
As stated , the Union won the election 6 to 2 If only 2
votes be shifted from the "yes " to the "no" column, the
Union's majority is lost Did Parent , Simons, and Tilley
vote in favor9 There is no way of knowing But they never
knew the truth of the matter about the wage scale, they
were subject, it may be, to the "prima facie misrepresenta-
tion" of which the court remand speaks From this it
follows that three votes were questionable in the view of
the court And, as they could be swing votes , the entire
election falls under a cloud As I understand the law of the
case now, the Respondent was never under obligation to
bargain with the Union and the complaint must therefore
be dismissed
RECOMMENDED ORDER
I hereby recommend that the complaint be, and it hereby
is, dismissed in its entirety