Havatampa Cigar Corp.

National Labor Relations Board - Board Decisions

Apr 29, 1969

175 N.L.R.B. 736 (N.L.R.B. 1969)

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Havatampa Cigar Corporation , Manufacturing
Division and Brewery Workers, Bottlers, Beer
Drivers & Helpers, Soft Drink Workers , Drivers
& Helpers Local Union No. 388, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Petitioner. Case 12-RC-3177
April 29, 1969
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS FANNING, BROWN, AND ZAGORIA
Pursuant to a Stipulation for Certification upon
Consent Election, an election by secret ballot was
conducted on November 15, 1968, under the
direction and supervision of the Regional Director
for Region 12. At the conclusion of the election, the
parties were furnished a tally of ballots which
showed that of approximately 754 eligible voters,
768 ballots were cast, 253 of which were for, and
452 against, the Petitioner, and 63 were challenged.
The challenges were not sufficient in number to
affect the results of the election. Thereafter, the
Petitioner filed timely objections to conduct
affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on February 5,
1969, issued and duly served upon the parties his
Report on Objections in which he concluded, on the
basis of certain conduct revealed during the course
of the investigation, that Objection 3 had merit, and
recommended that the election be set aside, and that
a new election be ordered. He also recommended
that Objections 1, 2, 4, 5, 6, 7, 8, and 9 be overruled
as lacking in merit. The Employer filed timely
exceptions to the Regional Director's
recommendations that Objection 3 be sustained.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations 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
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
175 NLRB No. 109
All production and maintenance employees at the
Employers Tampa, Florida, manufacturing
division operation, excluding all office clerical
employees, professional employees, guards, and
supervisors as defined in the Act.
5. The Employer excepts to the Regional
Director's finding and conclusion that Objection 3
be sustained on the ground that the Employer's
notification to unit employees on the day before the
election that it had adopted a new pension plan was
expedited for the purpose of interfering with the
right of its employees to make a free and
untrammelled choice in their selection of a
bargaining representative, and to his
recommendation that the election be set aside and a
new election directed. We find merit in this
exception.
The record shows that the Employer had been
investigating the feasibility of a pension plan for its
employees for some time and that in April and May
1968, it had negotiated with an insurance carrier for
the preparation of such a plan. Final studies and
plans satisfactory to management were completed
by early September 1968, and management decided
to submit and recommend adoption of the plan to
its Board of Directors at their next meeting on
November 14, 1968. On September 4, 1968,
members of the Board were notified of the date of
the meeting.' The Union subsequently filed its
petition on October 10, 1968, and an election was
thereafter scheduled for November 15, 1968.
On November 14, the board of directors adopted
the plan. That same day the plan was announced to
the press and to all employees, including unit
employees, in the Tampa area.' Notice to
Tampa-based employees was by posting in the
plants. The plan covered all of the Employer's 3,300
employees including some 750 unit employees.
The record also shows that prior to the filing of
the petition, employee committees had expressed to
the Employer their interest in a retirement program.
An indication of this is contained in an article in the
October 11, 1968, issue of a local newspaper
covering a strike then on at the Company's
manufacturing plants, which makes mention of
comments about the employees' interest in having a
retirement plan. Also, the Union, during its
organizational drive, publicized its own pension plan
among the unit employees.
On the basis of the foregoing we are not
convinced that the Employer timed the
announcement of the pension plan for the purpose
of interfering with the unit employees' choice of a
bargaining representative. On the contrary, the
'The September 4 notice incorrectly set the meeting date as November
15. By notice of September 9, the date was corrected . These notices did
not mention the pension plan However, the Company's president and
attorney state that in September 1968, the executive committee of the
board of directors decided to present the pension plan at the next meeting
of the board.
'Notice to employees in out -of-State plants were also mailed the same
day.
HAVATAMPA CIGAR CORPORATION 737
record evidence raises little question that the
announcement was made other than routinely,
following the conclusion of the Director's meeting
which was only by coincidence scheduled to fall on
the day before the election. Moreover, since the
adoption of the plan, which was to cover all its
employees, was clearly without regard to the
pending election, the Employer was under no
obligation to withhold its truthful announcement,
particularly in view of the fact that the Union had
publicized its own pension plan as an inducement to
the employees.' We shall sustain the Employer's
exceptions and certify the results of the election."
Accordingly, as we have overruled the objections
and as the tally of ballots shows that Petitioner has
not received a majority of the valid ballots 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 Brewery Workers,
Bottlers, Beer Drivers & Helpers, Soft Drink
Workers, Drivers & Helpers Local Union No. 388,
International Brotherhood of Teamsters,
'T.L. Lay Packing Company, 152 NLRB 342, 347-348; North American
Aviation . Inc., 162 NLRB 1685, 1688; Nalco Chemical Company, 163
NLRB No. 19 (TXD).
'We see no adverse inference in the fact that the Employer did not
publicize the proposed submission of the plan to the board of directors to
its employees in September prior to the filing of the petition . Any such
announcement at that time would have been conditional and thus
premature. In any event , the totality of circumstances overweigh any
inference that may be drawn from the omission.
Chauffeurs , Warehousemen & Helpers of America,
and that said labor organization is not the exclusive
bargaining representative of the employees in the
unit found appropriate , within the meaning of
Section 9 (a) of the National Labor Relations Act,
as amended.
MEMBER BROWN, dissenting:
An election among some 750 employees at the
Employer ' s Tampa operations was conducted as
scheduled , on November 15, 1968 . During the
forenoon of the previous day the Employer's Board
of Directors had adopted a new retirement pension
plan for all its personnel , in Tampa and elsewhere.
Employees at the Employer ' s plants located outside
Tampa were notified of the new plan by notices
mailed on November 14. However , the Tampa
personnel involved in the scheduled November 15
election were informed the same day the plan was
adopted through the posting of notices in the Tampa
plants on November 14.
Like the Regional Director , and as more fully
explicated in his Report on Objections, I am
satisfied that the precipitate timing of the
announcements of the retirement plan to the Tampa
employees on the day before the election, was
calculated by the Employer to interfere with the
employees ' free choice of a bargaining
representative . Cf. N.L.R.B. v. Exchange Parts Co.,
375 U.S. 405, 409. I must dissent , therefore, from
my colleagues' failure to adopt the Regional
Director's recommendation that the election be set
aside.
'The timing of the announcement and not the adoption of the plan is the
issue.