Dayton Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Jun 15, 1979

242 N.L.R.B. 1184 (N.L.R.B. 1979)

DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Dayton Tire & Rubber Co. and United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-
CIO-CLC, Petitioner. Case 16-RC-7295
June 15, 1979
SUPPLEMENTAL DECISION AND ORDER
DIRECTING FURTHER HEARING
The Board has considered the objections to an elec-
tion held on November 17, 1976,1 and the Hearing
Officer's report recommending disposition of same.
Having reviewed the record in light of the exceptions
and brief, the Board hereby adopts the Hearing Offi-
cer's findings and recommendations, except as modi-
fied below.
Following the election in this case, the Petitioner
filed timely objections to conduct affecting the results
of the election. Thereafter, the Acting Regional Di-
rector recommended that a hearing be held as to cer-
tain conduct not alleged in the Petitioner's specific
objections. In accordance with the recommendation
of the Acting Regional Director, the Board2 directed
a hearing as to an alleged interrogation by a supervi-
sor, an alleged threat of reprisal by another supervi-
sor, and the Employer's repeated distribution of pub-
lications and circulars relative to certain benefits,
such as dental insurance, cost-of-living allowance, a
pension plan, and other similar subjects.
Following the hearing, in his report on objections
the Hearing Officer concluded that the alleged inter-
rogation and threat of reprisal occurred but recom-
mended that they be found to be "of an isolated na-
ture and not likely to have interfered with the holding
of a free and fair election."3
The Petitioner excepts, alleging that it was an error
for the Hearing Officer to reject at the hearing its
offers of proof that allegedly would have demon-
strated additional incidents of interrogations and
threats of reprisal.
We find merit in the Petitioner's exceptions. We are
of the opinion that, where certain alleged misconduct
may be found or is found to have occurred but ap-
pears to be of an isolated nature, the objecting party
should not be precluded from adducing evidence
tending to establish that the misconduct was not iso-
' The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 446 for, and 553 against, the Peti-
tioner. There were 20 challenged ballots, an insufficient number to affect the
results.
2 Dayton Tire & Rubber Co.. 234 NLRB 504 (1978) (Member Penello dis-
senting).
In the absence of specific exceptions thereto, the Board adopts, pro for-
ma, the Hearing Officer's recommendation that the Employer's publications
and circulars be found to contain nothing tha would warrant setting aside
the election.
lated but sufficiently widespread to warrant a new
election. This is a matter which will, of necessity, re-
quire the exercise of sound discretion by a hearing
officer. Clearly. not all evidence offered by an object-
ing party to support or explain the specifically alleged
misconduct will be sufficiently relevant or significant
to warrant its inclusion in the record. Nonetheless, in
those limited circumstances where certain conduct
may or may not warrant a new election- depending
on whether or not it was too isolated to have had an
impact on the election 4 a hearing officer should not
view an order directing hearing so restrictively as to
exclude automatically all evidence relating to the cir-
cumstances surrounding alleged objectionable con-
duct.
Here, the Hearing Officer, in rejecting the Petition-
er's offers of proof, excluded all evidence not directly
probative of the alleged interrogation and threat of
reprisal set for hearing by the Board's Order. For the
reasons stated above, the Hearing Officer should have
admitted the Petitioner's proffered evidence to the
limited extent that it would establish whether the spe-
cifically alleged objectionable conduct was isolated in
nature or was part of a pattern of similar misconduct
warranting the directing of a second election.
Although we share our dissenting colleague Mem-
ber Penello's concern with unnecessary delays, we do
not agree that the avoidance of any and all delays
outweighs our responsibility to ensure the holding of
free and fair elections. In this case, it is, of course,
true that the Petitioner, as of November 1977 (a year
after the election), could have chosen to withdraw its
objections and instead file a petition for a new elec-
tion. However, the Petitioner has chosen-as is its
right-to pursue its contention that the Employer en-
gaged in objectionable conduct interfering with the
employees' free choice in the election held in this
case. Therefore, the Petitioner is entitled to a determi-
nation as to whether a second election is warranted
and its objections are in no way rendered less worthy
of full consideration because a new petition would
now be timely.
Accordingly, as we have determined that the Peti-
tioner should be permitted limited leeway to adduce
evidence-as set forth in its offers of proof-tending
to establish that the Employer's interrogation and
threat of reprisal were not isolated in nature but wide-
spread in nature, we shall remand this case for the
purpose of receiving additional evidence in accord-
ance with our decision herein.
4Ohviousls, cases such as this one invols ing a unit with a large number of
employees (about 1.000 voters were involsed herein) would be likely to in-
solve contentions by a party that alleged objectionable conduct. i it oc-
curred was too isolated to warrant directing a new election
242 NLRB No. 154
1184
DAYTON TIRE & RUBBER CO.
ORDER
It is hereby ordered that the hearing in this pro-
ceeding be, and it hereby is, reopened for the limited
purpose of adducing evidence contained in the Peti-
tioner's offers of proof to the extent that the evidence
tends to show whether the Employer's interrogation
and threat of reprisal were isolated incidents or were
part of widespread similar incidents.
IT IS FURTHER ORDERED that this proceeding be,
and it hereby is, remanded to the Regional Director
for Region 16 for the purpose of conducting such fur-
ther hearing and issuing a report thereon, and that
the Regional Director be, and he hereby is, autho-
rized to issue notice thereof to all parties.
MEMBER PENELLO, dissenting:
I disagreed with the original remand for hearing in
this case because the conduct at issue had not been
specifically alleged by the Petitioner in timely filed
written objections. The reasons for restricting a re-
gional director's postelection investigation to such ob-
jections are extensively discussed in my dissenting
opinion in Dayton Tire & Rubber Co., supra. In that
opinion, I stated, inter alia.
One particularly anomalous situation that now
occurs . . . is that postelection proceedings
drag on for up to a year, at which time, under
the Act, a union that has lost the election can
file a petition for a new election. Even if they
occur only rarely, such prolonged delays make
a mockery of the election process, discourage
the participating parties, and frustrate the pur-
poses of the Act.5
In response to my expression of concern about the
potential for undue delay when the scope of postelec-
tion investigations is not limited to specific, timely
filed objections, my colleagues in the majority opined
that "despite our colleague's apparent preoccupation
with dubious economics of time, he has been unable
to show, and we are unable to find, any great likeli-
hood of protracted delay in the effectuation of the
Board's procedures."6 Perhaps the following chronol-
ogy of events in this proceeding will provide the evi-
dence which has heretofore escaped the majority's at-
tention: election held, November 17, 1976; Acting
Regional Director's report on objections issued, Feb-
ruary 18, 1977; Board Decision and Order Directing
Hearing issued, January 26, 1978; hearing held,
March 28, 1978; Hearing Officer's report on objec-
tions issued, April 12, 1978; Board Decision and Or-
der Directing Further Hearing issued today; close of
proceeding, date unknown.
234 NLRB 504, 508-509.
6 d., p. 505.
The Petitioner herein, which lost the disputed elec-
tion almost 2 years ago by a 553-to-446 vote, could
have filed a petition for a new election long ago. Yet
the Board majority has hereby determined to direct
another hearing to receive evidence about conduct
which the Petitioner not only failed to allege in timely
filed written objections but also failed to mention to
the Regional staff or the Board at any time in the year
and a half postelection, prehearing period. Moreover,
the majority's action will result in the litigation of
events beyond the scope of its own previous Order
wherein it specifically delimited the evidence to be
received at hearing. My colleagues propound the the-
ory that the Petitioner will only be permitted to intro-
duce additional background evidence for the purpose
of establishing that the incident of interrogation pre-
viously at issue was not isolated. The additional evi-
dence will have no legal relevance, however, unless it
establishes the occurrence of heretofore unalleged
and unlitigated acts of interrogation which, without
any reference to the incident previously considered,
would warrant setting aside the election. I cannot per-
mit such flagrant disregard to the Board's statutory
purposes to pass without proclaiming my opposition.
Accordingly, I dissent from the Board's continued
failure to certify the results of the election.
MEMBER MURPHY, dissenting:
By this decision the majority converts a narrow or-
der regarding a single interrogation and a threat of
reprisal into a broad search for any employer conduct
which might have affected the election, even though
evidence of such conduct was available to the Peti-
tioner at the time it filed its objections and came for-
ward with evidence in support thereof. The majority
justifies this under the guise of allowing the Petitioner
an opportunity to present evidence ostensibly de-
signed to show a so-called pattern of misconduct by
the Employer, that is, that the one threat and the
single interrogation were not in fact isolated. How-
ever, the majority's position will require litigation of
the additional events offered by the Petitioner and a
finding that they did in fact occur and did constitute
improper conduct which interfered with the election
in order to support the conclusion that the events al-
ready found by the Hearing Officer were not isolated.
I view this as a device to achieve what is patently
unjustified, the litigation of allegations raised too late.
In short, the majority is simply granting the Petitioner
yet another, and clearly unwarranted, opportunity to
produce evidence of further objectionable conduct for
the purpose of setting aside the election.
In its Decision remanding this case for hearing, the
Board reaffirmed established Board precedent that a
regional director may, in his discretion, set aside an
election because of objectionable conduct uncovered
1185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the investigation of objections, even though
that particular conduct was not the subject of a spe-
cific objection.7 Relying on this principle the Board
adopted the Acting Regional Director's finding that a
hearing was warranted to resolve substantial material
and factual issues raised only by the Petitioner's gen-
eral Objection 9 and directed a hearing limited to evi-
dence of "an alleged interrogation by a supervisor
[and] an alleged threat of reprisal by [another] super-
visor .... "
In his report on objections, the Hearing Officer
found that Supervisor Jim Henthorn had questioned
employee Gerald Fryman on how he intended to vote
in the union election8 and that Supervisor Bobby
McCoy had threatened employee Christopher B.
Chambers that persons supporting the Union would
not be advanced in the Company. The Hearing Offi-
cer found, however, that these two incidents were iso-
lated in nature and that, given the size of the unit
(1,000 employees) and the substantial margin by
which the Union lost, they were not likely to have
interfered with the holding of a free and fair election.9
In so finding, the Hearing Officer noted that he had
rejected evidence of additional supervisory interroga-
tion which the Petitioner sought to introduce by way
of offers of proof on the ground that said evidence
went "beyond the scope of the Board's Order."
Specifically, the Petitioner in its offer of proof as-
serted that, if permitted, Fryman would testify that
on the day of the election he heard Supervisor Del-
bert Milliken interrogating two employees as to how
they intended to vote in the election. The Hearing
Officer ascertained that, despite evidence presented
by the Petitioner on this issue during the investiga-
tion,' 0 the Petitioner had not excepted to the failure of
the Acting Regional Director in his report on objec-
tions to make any reference or findings with respect
to said evidence. The Hearing Officer therefore re-
jected the Petitioner's proffered evidence regarding
Milliken. In another offer of proof the Petitioner as-
serted that, if permitted, Fryman would testify con-
cerning his observation of four instances of interroga-
tion by Henthorn involving three different employees.
When the Petitioner admitted that it had not previ-
ously presented evidence to the Board on these addi-
tional allegations of interrogation, the Hearing Officer
refused to allow the Petitioner to pursue this line of
questioning.
' Dayton Tire & Rubber Co., 234 NLRB 504. 505 (1978).
s The Hearing Officer noted the absence of evidence that this conversation
was overheard by other employees.
9
(iting Essex Internurional, Inc., 216 NLRB 831 (1975): BS Recordr
Diision of (BS, Inc.. 223 NLRB 709 (1976).
10 In an investigation affidavit prepared by a Board agent, employee ry-
man stated that he had overheard Supervisoi Milliken interrogating two
employees on the morning of the election.
In its exceptions the Petitioner contends that the
Hearing Officer erred in rejecting the above-discussed
evidence of alleged additional interrogations. The Pe-
titioner asserts that, inter alia, said evidence is closely
related to the specific subject of the hearing, that it is
important to show the Employer's alleged wrong-
doing, and that by its exclusion the Petitioner has
been denied due process. The Petitioner admits, how-
ever, that the rejected evidence "goes beyond the lim-
ited scope of [O]bjection No. 9."
I find, in agreement with the Hearing Officer, that
the proffered evidence goes beyond the scope of the
Board's Order. That Order was intentionally drafted
narrowly to "limit" the hearing to receipt of evidence
necessary to resolve the issues raised by the Petition-
er's Objection 9. The majority, ignoring its directive
to so limit the hearing, finds that the Hearing Officer
should not have viewed the Order so restrictively as
to automatically exclude all evidence tending to show
a pattern of misconduct.
The majority is confusing the taking of evidence
related to the effect of certain specified objectionable
conduct on the election with the taking of evidence
on whether additional objectionable conduct oc-
curred. As the Hearing Officer recognized, the parties
have a right to present evidence on whether the inter-
rogation and threat found to have occurred had an
effect on the election. They do not have a right to
present evidence as to additional objectionable con-
duct at this stage. Yet here the majority is directing
the Hearing Officer to take evidence on incidents
which are totally unrelated to the circumstances sur-
rounding the specific incidents found." Thus, as
noted previously, they are allowing the Petitioner to
present evidence to other alleged conduct which the
Petitioner heretofore has failed to allege as objection-
able. 2
Objecting patties are not entitled to an unlimited
number of bites at the proverbial apple. They are
given an opportunity during the investigation on ob-
jections to present evidence in support of their objec-
tions. Further, they benefit from the Board's allowing
1 Despite the fact that the Petitioner made no offer of proof regarding
additional incidents of threats, the majority directs a hearing which would
allow the Petitioner to adduce evidence tending to show that the threat of
reprisal found by the Hearing Officer was not isolated. There is absolutely no
justification given by the majority, nor is one available, for soliciting poten-
tially nonexistent evidence which no party seeks the Board to consider.
12 The majority totally overlooks the fact that the Petitioner has given no
justification for its failure to come forward during the investigation with
evidence of four additional incidents of interrogation by Henthorn. Signifi-
cantly, Fryman. found to have been interrogated by Henthorn himself and
so stating in his investigatory affidavit, made no mention in that document of
overhearing Henthorn interrogating other employees. Yet. at the hearing, the
Petitioner attempted to introduce evidence of additional interrogations by
lienthorn through Fryman. It is therefore apparent that evidence regarding
lienthorn's conduct was readily available to the Petitioner during the inves-
tigation on objections, and that it should now he foreclosed from presenting
such evidence as it is not newrlx discovered.
1186
DAYTON TIRE & RUBBER CO.
regional directors to consider, although not specifi-
cally alleged, any objectionable conduct uncovered
by the regional directors during their investigations,
as happened in this proceeding." They are entitled to
a hearing on objections when, and only when, sub-
stantial and material issues raised by evidence of ob-
jectionable conduct discovered during an investiga-
tion is in need of resolution. Thus, the Board orders
directing such hearings are by their very nature lim-
ited in purpose. They are not permits for fishing expe-
ditions in an unending search for independent inci-
dents of objectionable conduct. The majority's
Ii See fn. 7, supra
position, taken to its extreme, would allow parties to
come forward with additional evidence of objection-
able conduct during a hearing on objections any time
the evidence originally presented is deemed insuffi-
cient to necessitate a new election. This is clearly not
the intended purpose of such hearings. If it were, the
Board would never finally resolve objections to elec-
tions.
I therefore find, in agreement with the Hearing Of-
ficer, that the evidence of alleged additional interro-
gations offered by the Petitioner goes beyond the
scope of the Board's Order. Accordingly, I would
adopt the rulings and findings of the Hearing Officer
in their entirety, and certify the results of the election.
1187