Carry Cos. of Illinois

National Labor Relations Board - Board Decisions

Mar 29, 1993

310 N.L.R.B. 860 (N.L.R.B. 1993)

860
310 NLRB No. 142
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the absence of exceptions, we adopt pro forma the Regional
Director’s recommendation to open and count the ballots of K. Gray,
D. Miller, Larry Parent, Wesley Williams, M. Schreiber, F. Harak,
and A. Tozzi, and to hold the remaining challenged ballots in abey-
ance pending the issuance of a revised tally of ballots and a deter-
mination of whether these remaining ballots continue to be deter-
minative.
We further grant the Petitioner’s motion to take administrative no-
tice of the record and administrative law judge’s decision in the re-
lated cases, 13–CA–29715, 13–CA–29768, 13–CA–29910, 13–CA–
30075, and 13–CA–30219, and we have given due consideration to
those cases.
2 With regard to the Petitioner’s Objection 3, which alleges that
the Employer unlawfully compensated employees for voting in the
election, Chairman Stephens notes, consistent with his dissent in
Young Men’s Christian Assn., 286 NLRB 1052, 1054 (1987), that
the payments here were carefully restricted to cover only time (at
the normal rate of pay) and travel expenses for the purpose of trans-
porting voters to the voting site. See id. at 1054 fn. 6. Accordingly,
he agrees that the reimbursements here would not reasonably tend
to influence the election outcome.
3 The Petitioner describes the video as portraying a conversation
among several fictional employees regarding the relative merits of
unionization. The Petitioner alleges that the objectionable statement
was made by one of these employees (a fictional former Teamsters
employee), who explains his experience at the facility of a Teamsters
employer where the employees voted against a contract negotiated
by the Teamsters and as a result the employer closed the plant.
4 Those cases involve an employer’s expression of a prediction as
to the results of unionization. Such predictions must be based on ob-
jective facts to convey the employer’s belief of probable con-
sequences beyond its control or to convey a management decision
already arrived at to close the plant in the event of unionization.
Here, the statements contained in the video are not employer-ex-
pressed predictions of future events, but rather are partisan state-
ments of campaign propaganda.
5 The Petitioner’s brief in support of exceptions erroneously refers
to Objection 9; however, the substance of its exception relates to
Objection 7.
6 The Petitioner did not specifically set forth its arguments in its
exceptions, but rather cited its arguments (as the Charging Party) set
forth in its brief in support of exceptions to the administrative law
judge’s decision in the related unfair labor practice cases.
Carry Companies of Illinois, Inc. and Local 705,
International Brotherhood of Teamsters, AFL–
CIO, Petitioner. Case 13–RC–18195
March 29, 1993
DECISION AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered objections to and deter-
minative challenges in an election held July 15, 16, 17,
and 18, 1992, and the Regional Director’s report rec-
ommending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 95 for and 133 against the
Petitioner, with 40 challenged ballots, a number suffi-
cient to affect the election results.
The Board has reviewed the record in light of the
exceptions1 and brief,2 has adopted the Regional Di-
rector’s findings and recommendations, and issues a
direction remanding the case for further appropriate ac-
tion.
1. The Petitioner has excepted, inter alia, to the Re-
gional Director’s recommendation to overrule its Ob-
jection 5, which alleges that a video distributed by the
Employer to employees contained an unlawful threat
of plant closure. The Petitioner cited portions of the al-
leged objectionable statements in its brief. Having ex-
amined the record as it relates to this objection, and
accepting the accuracy of the Petitioner’s characteriza-
tions of the statements contained in the video, we
agree with the Regional Director that these statements
do not constitute objectionable threats of plant closure.
We note that the statements did not purport to emanate
from the Employer (or any official of the Employer),
but rather were the statements (and hence the views)
of a fictional employee concerning his prior work ex-
perience at a union company.3 Thus, the Petitioner’s
reliance on NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), and its progeny is misplaced.4 Rather, we find
this type of statement to be plainly recognizable to em-
ployees as employer propaganda.
Further, even assuming that this propaganda con-
stitutes a misrepresentation of fact or law, we agree
with the Regional Director that under the standards
enunciated in Midland National Life Insurance Co.,
263 NLRB 127 (1982), it is not objectionable and does
not warrant setting aside the election. Accordingly, we
find no merit in the Petitioner’s exceptions, and we
adopt the Regional Director’s recommendation to over-
rule Objection 5.
2. The Petitioner also has excepted to the Regional
Director’s recommendation to overrule its Objection
7,5 which alleges that dispatchers are supervisors and
therefore that their presence in the polling area during
the election was objectionable.6 We note that on No-
vember 8, 1990, the Board adopted the Regional Di-
rector’s finding in the prior representation case (13–
RC–18093) that dispatchers are not supervisors. The
Petitioner in that case was afforded the opportunity to
make its arguments before both the Regional Director
and the Board, and those arguments were rejected on
their merits. In addition, we note that in the related un-
fair labor practice case (see fn. 1) the Petitioner pre-
sented evidence and set forth its arguments on this
issue. Again, consistent with the previous representa-
tion case, these arguments were considered and re-
jected by the judge. Accordingly, we find that this
issue has been fully argued and litigated, and in the
absence of evidence of changed circumstances (which
the Petitioner has failed to produce either here or in
the related unfair labor practice cases), we adopt the
Regional Director’s finding that dispatchers are not su-
pervisors within the meaning of the Act.
861CARRY COS. OF ILLINOIS
1 The Petitioner expressly excepted to the Regional Director’s rec-
ommendation to overrule Objection 5, and also excepted to ‘‘The
recommendation to overrule Petitioner’s objections 4 and 6 [empha-
sis added] on the grounds they merely allege unobjectionable mis-
representations.’’ The Petitioner’s reference to Objection 6 rather
than Objection 12 in this context appears to be a typographical error,
because Objection 6 did not allege misrepresentations.
DIRECTION
IT IS DIRECTED that this case be remanded to the Re-
gional Director for Region 13, who shall, within 14
days from the date of this Decision and Direction,
open and count the ballots of K. Gray, D. Miller, Larry
Parent, Wesley Williams, M. Schreiber, F. Harak, and
A. Tozzi, and that thereafter the Regional Director
shall prepare and serve on the parties a revised tally
of ballots.
IT IS FURTHER DIRECTED that, if the revised tally of
ballots show that the remaining challenged ballots are
no longer determinative, the Regional Director shall
issue an appropriate certification; if the revised tally of
ballots show the remaining challenged ballots are still
determinative, the Regional Director shall institute fur-
ther appropriate proceedings to resolve those chal-
lenges.
MEMBER OVIATT, concurring.
For the reasons discussed below, I agree with, inter
alia, my colleagues’ overruling of Objection 5, and
also with their overruling of Objections 4 and 12
(which are not directly discussed in the majority opin-
ion).
Objection 5 alleges a threat of plant closure. Objec-
tion 4 alleges a misrepresentation of fact, and Objec-
tion 12 alleges that the Employer’s video tapes in
question contain misrepresentations of law and fact, as
well as threats of reprisals and promises of benefits.
The Petitioner offered the video tapes in support of
all three of these objections. In recommending the
overruling of these three objections, the Regional Di-
rector first found that the video tapes do not contain
threats or promises. I join my colleagues in affirming
this finding, thus disposing of all of Objection 5 and
that part of Objection 12 which alleges threats and
promises.
The Regional Director further found that even as-
suming, arguendo, the video tapes contained misrepre-
sentations of fact or law, as alleged, the misrepresenta-
tions alone would be insufficient to warrant setting
aside the election, citing Midland National Life Insur-
ance Co., 263 NLRB 127 (1982). The Regional Direc-
tor thus disposed of the remainder of Objection 12 and
all of Objection 4. My colleagues have affirmed the
Regional Director’s recommendations in these respects
also. I join them in doing so, but for the following rea-
sons.
Although the Petitioner excepted to the Regional Di-
rector’s recommended overruling of all three objec-
tions in question,1 the Petitioner has only presented
supporting argument in regard to the alleged threat of
plant closure asserted in Objection 5, and has not pre-
sented any supporting argument in regard to the al-
leged threats and promises asserted in Objection 12 or
to the alleged misrepresentations asserted in Objections
4 and 12.
In light of the Petitioner’s failure to present any ar-
guments in support of its exceptions to the Regional
Director’s recommended overruling of the Petitioner’s
misrepresentation objections, I therefore find it unnec-
essary, in affirming the Regional Director’s rec-
ommendations, to pass on her discussion of the merits
of those objections under Midland National.