Connor Trading Co., Inc.

National Labor Relations Board - Board Decisions

Jan 29, 1971

188 N.L.R.B. 263 (N.L.R.B. 1971)

CONNOR TRADING CO. 263
Connor Trading Company , Inc., and Truck Drivers Lo-
cal Union No. 355 , affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , Petitioner. Case 5-
RC-7066
January 29, 1971
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING,
BROWN , AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties, and ap-
proved by the Regional Director for Region 5 on
December 1, 1969, an election by secret ballot was
conducted in the above-entitled proceeding on De-
cember 10, 1969, in the unit found appropriate, under
the direction and supervision of the said Regional
Director. Upon the conclusion of the election, a tally
of ballots was furnished the parties in accordance
with the National Labor Relations Board Rules and
Regulations, Series 8, as amended. The tally of ballots
shows that there were approximately nine eligible vot-
ers and that nine ballots were cast, of which all were
against the Petitioner, and none was challenged.
Thereafter, the Petitioner filed a timely objection to
conduct allegedly affecting the results of the election.
In accordance with the Board's Rules and Regula-
tions, the Regional Director caused an investigation
of the objection to be made and, on January 30, 1970,
issued and served on the parties his Report on Objec-
tions. In his Report, the Regional Director recom-
mended that the Board overrule the Petitioner's
objection and issue an appropriate certification of re-
sults of election. On February 9, 1970, the Petitioner
filed timely exceptions to the Regional Director's Re-
port. The Board, having duly considered the matter,
concluded that the Petitioner' s exceptions raised ma-
terial issues , and ordered that a hearing be held for the
purpose of obtaining evidence bearing on these issues.
Pursuant to the said order, a hearing was held on
April 27, 1970, in Baltimore, Maryland; before Trial
Examiner William J. Brown, acting as Hearing Offi-
cer. All parties appeared and participated, with full
opportunity to examine and cross-examine witnesses
and present evidence and argument on the issues. On
July 13, 1970, the Hearing Officer issued and served
upon the parties his Report and Recommendations.
In his Report, the Hearing Officer concluded that
certain conduct of the Employer interfered with the
results of the election held December 10, 1969, and
recommended that the election be set aside and a new
one be conducted. Thereafter, the Employer filed ex-
ceptions to the Hearing Officer's Report.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby af-
firmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees of the Employer constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All warehousemen, truckdrivers and helpers em-
ployed by the-Employer at or out of its Ware-
house located at 1900 East Fort Ave., Baltimore,
Maryland ; excluding salesmen, office clerical
employees , guards, professional employees and
supervisors as defined in the Act.
5. The Board has' considered the Regional
Director's Report, the exceptions thereto, the Hearing
Officer's Report, the exceptions thereto, and the en-
tire record in this case, and hereby adopts the find-
ings, conclusions, and recommendations of the
Hearing Officer to the extent consistent with this De-
cision.
On October 10, 1969, Teamsters Local 557, affiliat-
ed with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
filed a representation petition for an election in a unit
of the Employer's warehousemen, drivers, and-
help-ers.' On October 24, a preelection conference was held
at the Board's Region 5 Office, attended by a repre-
sentative of the Regional Director, by Attorney Pen-
niman and Manager Connor for the Employer, and
by Business Representative Zappacosta of Local 557.
Also present was Business Representative Crout of
Truck Drivers Local Union 355 (also affiliated with
the Teamsters), which had lost an election in the same
unit during 1968. Connor expressed surprise that Lo-
cal 557 had filed the petition, because he believed
Local 355 had jurisdiction. The reason for Local 355's
presence was discussed. Upon learning of Local 557's
intent to assign its bargaining rights under any ensu-
ing certification to 355, the Employer asserted its un-
willingness to accept assignment of bargaining rights
upon certification of Local 557. Thereupon it was
observed that Local 355 would have to file its own
petition if it wished to obtain bargaining rights
1 All dates refer to 1969 unless otherwise indicated.
188 NLRB No. 43
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through a Board election. Although Local 355 ex-
pressed a general interest in securing representation
rights, it indicated no specific intention to file a peti-
tion. The conference ended with the Employer and
Local 557 signing a Stipulation for Certification Upon
Consent Election, scheduling an election for Novem-
ber 14.
On November 7, the Regional Office received a
letter from Local 557. requesting withdrawal of its
petition, and an agent of the Regional Director imme-
diately called the Employer's attorney to inform him
of the request. The Employer's attorney expressed no
objection. The agent asked that the Employer remove
the previously posted notice of election, and advised
the attorney he could consider the withdrawal request
approved. At 2:50 p.m. the Regional Director sent a
wire to the parties and their attorneys informing them
that the petition had been .withdrawn, that the elec-
tion arrangements were canceled, and that the notice
of election should be removed immediately.
On November 7, 1969, after receiving the Regional
Director's telegram, the Employer called its attorney
for advice about instituting a wage increase that had
been under consideration prior to Local 557's peti-
tion. The Employer's attorney advised the Employer
that, absent evidence of any further interest by Local
557, it was free, in his opinion, to revive its proposed
wage increase plan and make it effective in accord-
ance with the original plans. On November 10 and 11,
Connor explained to all employees in the unit that the
policy of giving raises in pay each 6 months would be
continued and extended; and announced a new 3-
year plan and the institution of new maximum rates
for drivers (up 37-1/2 cents to $3 hourly) and ware-
housemen (up 25 or 35 cents to $2.65).
Local 355, meanwhile, had secured signatures on
authorization cards in its own name from employees
in the same unit. It did not make a demand upon the
Employer for recognition, but filed the instant peti-
tion on November 7, at 2:59 p.m. Local 355 did not
inform the Employer of the filing. On Monday, No-
vember 10, the Regional Director sent a letter and a
copy of the petition to the Employer. The Employer
did not receive the letter and petition-its first notice
of the filing-until November 13. Thereafter, Local
355 and the Employer executed a Stipulation for Cer-
tification upon Consent Election, and, as indicated
above, the Regional Director approved it on Decem-
ber 1. The election was conducted on December 10,
the tally showed the Union lost, and the Union filed
an objection based on the aforementioned wage an-
nouncements.
The Hearing Officer concluded that "the
[Employer's] decision on and announcement of" the
increase in rates were made "at a time when the Com-
pany had knowledge of Local 355's continuing inter-
est in representation of unit employees," and that its
conduct in announcing the benefits on November 10
and 11 amounted to interference with the results of
the election. We disagree.
The Employer's November 10 and 11 announce-
ments of its new 3-year plan with increased wage rates
fell within the critical period marked by the Novem-
ber 7 filing by Local 355, and hence must be consid-
ered? It is well settled that:
Although the granting of benefits during the rele-
vant period preceding an election is not necessar-
ily cause for setting aside an election, the Board
has set aside elections where it appears that the
granting of the benefits at that particular time
was calculated to influence the employees in their
choice of a bargaining representative. In the ab-
sence of evidence demonstrating that the timing
of the announcement of changes in benefits was
governed by factors other than the pendency of
the election, the Board will regard interference
with employee freedom of choice as the motivat-
ing factor. The burden of establishing a justifia-
ble motive remains with the Employer. The fact
that the employees may have known about or
otherwise anticipated the increase in wages is not
necessarily controlling. The crucial determina-
tion is whether the benefits were conferred for
the purpose of influencing the employees in their
choice of bargaining representatives and were of
a type reasonably calculated to have that
effect.3
The type of benefits conferred were such that the
"crucial determination" is whether the Employer an-
nounced the benefits for the purpose of influencing
the employees in their choice of bargaining represent-
ative.
The Hearing Officer discredited the Employer's tes-
timony that it had decided on the new maximum rates
prior to October 10, when Local 557 filed its petition,
and the Employer excepts to this credibility reso-
lution.4 However, without regard to when the exact
amount was formulated, we find no evidence that the
timing of the Employer's announcement of benefits
was tainted by an unlawful purpose. Although Local
355 had expressed a generalized interest in repre-
2 West Texas Equipment Company, 142 NLRB 1358; The Ideal Electric and
Manufacturing Company, 134 NLRB 1275.
3 The Baltimore Catering Company, 148 NLRB 970, 973.
4 The Employer also excepts to various other findings of the Hearing
Officer, on the ground that he erred in crediting certain testimony . It is the
established policy of the Board not tooverrule a Hearing Officer's credibility
resolutions unless the clear preponderance of all the relevant evidence con-
vinces us that the resolutions were incorrect . The Coca-Cola Bottling Compa-
ny of Memphis, 132 NLRB 481, 483; Stretch-Tex Co., 118 NLRB 1359, 1361.
We find no sufficient basis for disturbing the credibility resolutions in this
case.
CONNOR TRADING CO. 265
senting the employees when it attended the confer-
ence on Local 557's petition, it failed to fortify this by
thereafter making known and substantiating a sup-
ported interest in them. Indeed, thereafter Local 557
executed the Stipulation with the Employer. Although
it was understood by all that Local 355 would have to
file its own petition in order to displace Local 557,
there is no evidence that, when the Employer was
informed of the withdrawal on November 7, it was
simultaneously advised Local 355 was filing in substi-
tution. Nor do we think these circumstances imposed
on the Employer a burden of inquiry, on November
7, whether it could anticipate a substitution. Fur-
thermore, the record is barren of any showing to sup-
port Local 355's assertion that the Employer, when it
announced the wage increases, informed the employ-
ees its purpose was "to meet Union conditions." In
sum, we think it clear from the foregoing that what-
ever inchoate interest Local 355 may have expressed
at the October 24 conference was, standing alone,
insufficient to charge the Employer with notice of
continuing interest from which an improper motive
might be inferred. In any event, a new petition for an
election would now be timely, as a year has passed
since the material events herein.
Accordingly, as we have overruled the objection
and as the tally of ballots shows that the Petitioner has
not received a majority of the valid votes cast, we shall
certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for Truck Drivers Local Un-
ion No. 355, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, and that the said labor organization
is the exclusive representative of the employees in the
unit found appropriate, within the meaning of Section
9(b) of the National Labor Relations Act, as
amended.