Data Duplicators, Inc.

National Labor Relations Board - Board Decisions

Jul 26, 1968

172 N.L.R.B. 1317 (N.L.R.B. 1968)

DATA DUPLICATORS, INC. 1317
Data Duplicators , Inc. and Houston Offset Workers
Printing Pressmen and Assistants ' Union No. 71,
Subordinate to the I P P and A U of N A, Peti-
tioner . Case 23-RC-3012
July 26, 1968
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed August 24, 1967, an
election was conducted on September 29, 1967,
under the direction of the Acting Regional Director
for Region 23 among employees in an agreed unit.
Upon the conclusion of the balloting, the parties
were furnished with a tally of ballots which showed
that, of approximately 20 eligible voters, 17 cast
valid ballots, of which 3 were for and 14 were
against the Petitioner and 3 ballots were chal-
lenged. The challenges were insufficient in number
to affect the election results. Thereafter, the Peti-
tioner filed timely objections to conduct affecting
the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Acting Regional
Director on October 27, 1967, issued a Direction of
Hearing on Objections, pursuant to which a hearing
was held on November 21, 22, 24, 27, and 30,
1967, before Hearing Officer Clayton Corley.
Representatives of the Petitioner and the Employer
were present at the hearing, and each was given full
opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence rele-
vant to the issues.
On February 2, 1968, the Hearing Officer issued
and duly served upon the parties his Report on Ob-
jections, in which he recommended that Objections
2,4(a),5,6,7,8,9, 10, 11, 12, 13, and 14 be over-
ruled and that Objections 1, 3, and 4(b) be
sustained and the election be set aside and a new
one directed. The Petitioner and the Employer filed
timely exceptions to the Hearing Officer's Report
on Objections.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has
delegated its powers in connection with this case to
a three-member panel
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 con-
cerning the representation of employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The following employees, as stipulated by the
parties, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees in-
cluding duplicating press operators, and all
other duplicating and/or copy machine opera-
tors, bindery employees, truckdrivers and plant
clerical employees, employed by the Employer
at its plant location at 1202 Washington St.,
South Houston, Texas, but excluding all office
clericals, watchmen, and supervisors as defined
in the Act.
5. The Board has duly considered the Peti-
tioner's objections, the Hearing Officer's Report,
the exceptions and supporting arguments, and the
entire record in this case, and hereby adopts the
Hearing Officer's findings, conclusions, and recom-
mendations with respect to Objections 2, 4(a), 5, 6,
7, 8, 9, 10, 11, 12, 13, and 14. With respect to Ob-
jections 1, 3, and 4(b), we do not agree with the
Hearing Officer's recommendation that those ob-
jections be sustained. To the contrary, we are un-
able to conclude on the basis of the record herein
that the evidence supports those objections:
Objections 1 and 3: 1. "Each employee was
required to sign a memo about raise increases and
its relation to production, quality, and amount of
waste" and; 3. "Granting of raises subsequent to
the filing of the representation petition." These ob-
jections were considered together in the Hearing
Officer's report.
The evidence shows that the Employer was
awarded a recent contract from NASA, which
became effective July 1, 1967. The Employer at
this time began a review of employee wage rates
which it completed on July 25. Thereafter, the Em-
ployer initiated wage increases which became effec-
tive for the pay period commencing July 27 and
which the employees received in their pay on Au-
gust 4. On July 27 the Union filed its petition in the
instant case and on July 31 made its first request
for recognition with the Employer who did not
receive such notice until August 3.' On the basis of
these facts and the record as a whole the Hearing
Officer finds that the wage increases granted were
' The Union's request had been mailed to the wrong address, thus caus-
ing the above delay in receipt of notification by the Employer
172 NLRB No. 140
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasonably calculated to and did interfere with the
employees in the exercise of their freedom of
choice in selecting or rejecting the Union as their
bargaining agent. We do not agree.
A review of the entire record herein fails to
establish the fact that the Employer had any
knowledge of the Union's activity prior to effec-
tuating the wage increases on July 27. Moreover,
the record shows that during the third quarter of
the previous year and possibly during the third
quarter of 1965, wage increases had been granted
to some employees. Although no definite informa-
tion was provided as to amounts or method of
notification regarding such increases in those years,
no evidence was offered to refute such past prac-
tice. On the basis of these factors, we are not per-
suaded that the Employer's course of action herein
was prompted by the Union's presence.
In addition, we further note that the Hearing Of-
ficer in his report has not discussed the allegation
contained in Objection 1. With respect to this ob-
jection, the evidence shows that only employees on
the night shift of August 4 were asked to sign the
memo. There is evidence that on his own initiative,
the night shift supervisor asked employees to sign
the memo after reading it because he wanted to
make sure that all of the employees under his su-
pervision had read the memo. There is no evidence
that the employees on the other shifts were asked
or required to sign the memo. There is nothing in-
herently coercive or restraining in such a practice
and without more evidence as to accompanying
conduct or statements we conclude that such con-
duct does not warrant setting the election aside.
Accordingly, we shall overrule Objections 1 and 3.
Objection 4(b): "Individual private conferences
with employees by Messrs. Loving and E. Rocky
tending to frighten, intimidate, and coerce em-
ployees."
The Hearing Officer credited testimony of em-
ployees Morris Chandler, William Fowler, and
Alvin B. Winn in total or in part and discredited
Roy Torres Avila concerning interrogations of the
foregoing employees by Supervisors Loving, Rocky,
Brantner , and Howard.
Concerning the interrogation of Chandler, the
record shows that on September 13 Chandler gave
notice that he would be quitting his employment
about September 22 for a job in California. On or
about September 20, Loving called Chandler into
his office because he had been informed Chandler
was considering delaying his previously announced
departure. Loving wanted to know when Chandler
could be leaving so that he could plan on hiring a
replacement . Chandler indicated that he had
received another job offer in the area and wanted
to continue working until he could find out about
the new offer. Loving testified without contradic-
tion by Chandler, "I told Mr. Chandler that we
would permit him to continue working on a tempo-
rary basis but that within the next few days, I
wanted him to tell me exactly when he was leav-
ing." On September 27, Chandler informed Loving
that he would be leaving October 4. On this occa-
sion Loving informed Chandler that his letter of
recommendation would be ready the following
week. However, concerning their September 27
conversation, both participants gave a different ac-
count as to an alleged statement made by Loving.
Loving testified that he told Chandler that since he
was leaving 3 days after the election, the results
could not affect him one way or the other, and he
would leave to the dictates of Chandler's own con-
science whether or not Chandler voted in the elec-
tion. In his testimony, Chandler quoted Loving as
saying, "Since you are leaving, this does not really
concern you and its not any of your affair, and you
should not be the one to decide whether the people
are going to have a union or not, its really not up to
you anymore. I would advise you to place a `no'
vote or don't vote in the election." Chandler
testified also that he told Loving that he would
vote. In addition to the above, Chandler further
testified that on the date of the election, Supervisor
Brantner asked him how he was going to vote, and
Jones, also a supervisor, a couple of hours before
the election told Chandler that he thought Chandler
was not going to vote. The Hearing Officer finds
that to the extent Chandler's testimony is in certain
respects inconsistent with that of Loving and Jones,
he credits Chandler.'
We are not persuaded that the above remarks by
representatives of the Employer adversely affected
the outcome of the election. Furthermore, Chand-
ler's own testimony does not allege that such
statements were made in a coercive or threatening
manner or that his request for a recommendation
was made conditional upon the manner in which he
voted. Accordingly, we find that the alleged state-
ments are not grounds for setting aside this elec-
tion. Accordingly, we do not adopt the Hearing Of-
ficer's conclusion that the alleged statements inter-
fered with the free right of an employee in casting
his ballot.
Concerning the testimony of William J. Fowler,
Fowler testified that in separate conversations and
z Jones' testimony corroborates Loving's as to what was said during the
two conversations Jones was at his desk on both occasions right outside
the entrance to Loving s office and testified that he heard both conversa-
tions
DATA DUPLICATORS, INC.
in response to his request for day shift work, both
Jones and Rocky replied to his request by promis-
ing to put him on days after the election if the
Union did not get in. Jones and Rocky admit the
conversations, but both deny that such promises
were made. The Hearing Officer finds that cross-ex-
amination of this witness, together with the in-
troduction into the record of an affidavit taken 10
days subsequent to the election effectively dis-
credits the testimony of Fowler, except as to the al-
leged promises by Jones and Rocky to put Fowler
on days if the Union did not get in. Continuing, the
Hearing Officer states, "that because of the in-
herent probabilities and the inconsistencies of the
recorded testimony by Fowler with his previously
given affidavit, together with comparative
demeanor of the witnesses, I credit the testimony of
Fowler to the extent that Jones and Rocky told him
they would put him on days if the Union did get in,
but beyond this I would accord it no weight."
Fowler's affidavit discloses that Fowler asked
Jones if he could be put on days because of his
church activities. According to Fowler's affidavit,
Jones told him, "Well, we can't do that until after
the election," and later in the day Rocky ap-
proached him and said, "Billy Joe, Marshal told me
you want to go back on days and I would like to do
that but we have to wait and see after the election."
In view of the Hearing Officer's finding that
demeanor evidence discloses that Jones and Rocky
were more credible witnesses than was Fowler, and
the general unreliability of Fowler's testimony when
compared to his affidavit, we are not persuaded
that the fact that Fowler referred to this incident in
his affidavit is a sufficient basis for crediting
Fowler's testimonial version of Jones' and Rocky's
response to his request to go on days, over the ver-
sion given by them. Accordingly, we do not adopt
the Hearing Officer's conclusion that Jones and
Rocky made the statements attributed to them by
Fowler at the hearing.
1319
Concerning the testimony of Alvin B. Winn, the
Hearing Officer credits Winn's testimony that sub-
sequent to August 17 Supervisor Henry Howard
asked him what he thought of the Union and how
he was going to vote. The record establishes the
fact that Howard was a nonsupervisor leadman
prior to August 17, and was actually involved in the
initial phase of the Union's organization. The Em-
ployer in its exception correctly states that there is
no evidence on the record to sustain the finding
that the alleged conversation occurred subsequent
to August 17. Accordingly, on the basis of the
absence of record evidence establishing that the al-
leged statement was made by Howard' after he
became a supervisor, we find that the evidence is
insufficient to support the Hearing Officer's conclu-
sion . We further find that Supervisor Brantner's al-
leged asking of Winn how he was going to vote was
at most an isolated incident, which according to
Winn's own testimony was free of any coercion.
For the above reasons, we shall overrule Objection
4(b).
As we have overruled the above previously
sustained objections and as a tally of ballots
shows that the Union did not receive a majority of
the valid ballots cast in the election, we shall
certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots has not been cast for Houston Offset Work-
ers Printing Pressmen and Assistants' Union No.
71, Subordinate to the I P P and A U of N A, and
that said labor organization is not the exclusive
representative of the employees in the appropriate
unit in this case, within the meaning of Section 9(a)
of the National Labor Relations Act.