Howard Johnson Distribution Center

National Labor Relations Board - Board Decisions

Jun 19, 1979

242 N.L.R.B. 1284 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Howard Johnson Company d/b/a Howard John-
son Distribution Center and General Drivers, Ware-
housemen and Helpers Local Union 745, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Petitioner. Case 16-RC-7728
June 19, 1979
DECISION AND CERTIFICATION OF
REPRESENTATIVE
The Board has considered objections to an election
held on August 7, 19 7 8, and the Regional Director's
report recommending disposition of same. The Board
has reviewed the record in light of the exceptions and
briefs, and hereby adopts the Regional Director's
findings and recommendations.
The Employer's exceptions primarily allege that
the Regional Director's investigation of Objections 2,
3, and 4 was insufficient as the Board agent failed to
interview certain witnesses who allegedly would have
supported its objections. Thus, with respect to Objec-
tion 2, the Employer claims that the Board agent led
the Employer to believe that he would not investigate
that objection, but then proceeded to conduct an in-
vestigation without interviewing two of its supporting
witnesses. With respect to Objections 3 and 4, the
Employer argues that the Board agent, while alleg-
edly aware that the Employer's primary witness was
soon to arrive for the interview, refused to wait and
left without taking that witness's affidavit. As a result
of the foregoing, the Employer requests that this case
be remanded for a hearing or for further investiga-
tion. We find no basis for granting the Employer's
request for, even assuming that the alleged manner in
which the investigation was conducted justified the
Employer's failure to present testimony of pro-Em-
ployer witnesses to the Board agent, the Board
agent's alleged conduct in no way precluded the Em-
ployer from demonstrating to us that such testimony,
if presented, would have supported its objections. Ac-
cordingly, regardless of the nature of the investigation
here, the Employer, in seeking to have the Board
overrule a regional director's recommendation, was
still required, under established Board policy, to sup-
ply the Board with specific evidence, tantamount to
an offer of proof, which prima facie would warrant
setting aside the election before the Board would di-
rect a hearing or require the Regional Director to
pursue the investigation further. Regency Electronics,
Inc., 198 NLRB 627 (1972); Bufkor-Pelzner Division,
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was nine for, and none against, the Peti-
tioner: there were no challenged ballots.
Inc., 169 NLRB 998 (1968). Here, the Employer's ex-
ceptions are insufficient to justify remanding this case
since they do not specify the disagreement with the
Regional Director's findings of fact and they do not
provide any indication of what the Employer's wit-
nesses might testify to, were they permitted to testify,
which would contradict the Regional Director's find-
ings. 2
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for General Drivers, Ware-
housemen and Helpers Local Union 745, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, and
that, pursuant to Section 9 (a) of the Act, the forego-
ing labor organization is the exclusive representative
of all the employees in the following appropriate unit
for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and
other terms and conditions of employment:
All drivers and warehousemen employed at The
Howard Johnson Distribution Center, 3420 Ave-
nue F East, Arlington. Texas, excluding office
clerical employees, guards, watchmen and super-
visors as defined in the Act.
MEMBER MURPHY, dissenting in part:
Contrary to my colleagues, I would find that the
Regional Director's investigation of the Employer's
Objections 3 and 4 was inadequate and that, conse-
2 With respect to Objection 2, the Regional Director found that the alleged
misrepresentations did not warrant setting aside the election under the
Board's decision in Shopping Krt Fxd Market, Inc., 228 NLRB 1311
(1977). Subsequently, in General Knit of California, Inc. 239 NLRB 619,
which issued on December 6, 1978. the full Board, Members Penello and
Murphy dissenting, overruled Shopping Karr, and returned "to the standard
of review for alleged misrepresentations most cogently articulated in Holl -
wood Ceramics Comnpat. Inc." Accordingly. Chairman Fanning and Mem-
bers Jenkins and Truesdale have considered the misrepresentations alleged
in Objection 2 under the standard of review as set forth in Generl Knit and.
under that standard, find that the misrepresentations are not sufficien to
warrant setting aside the election. Member Penello adheres to his position in
Shopping Karr and, in accordance with the recommendations of the Regional
Director. also finds no merit in this objection.
It should also be noted, in this regard. that the Employer's failure to
adequately support the misrepresentation allegations in its exceptions., so as
to make out a primafacie case under General Knitr, was in no way induced by
the Employer's reliance on Shopping Kr. 'he then-presailing Board law. In
this connection, as noted above, the Employer claims that the Board agent
here initially instructed the Employer not to submit evidence in support of
Objection 2 as the misrepresentation allegations, even if true. were not objec-
tionable under Shopping Karr In its brief to the Board. the Emploer com-
plained that the Board agent's reliance on Shopping Kart for refusing to
receive evidence on this objection ignored the fact that the Board might
return to the principles enunciated in Hollcy.ood Ceranmics and that the al-
leged misrepresenta,ons might be found objectionable under this standard.
Notwithstanding these protestations, the Employer has nowhere supplied
evidence for consideration which is cognizable under the HItolln,,d Ceram-
its standard embraced in General Knit and, in failing to do so. has not
demonstrated any basis for sending the case back to the Regional Director.
242 NLRB No. 183
1284
HOWARD JOHNSON DISTRIBUTION CENTER
quently, it is improper to certify Petitioner at this
time.
In both this case and in Case 16-RC-7729. 242
NLRB 1286 (also issued today and involving the
same parties), the Employer alleged in its Objection 3
that Petitioner threatened employees with loss of em-
ployment if they did not sign a union authorization
card and said that "the union would not represent
and obtain the same benefits for non-union employ-
ees"; in Objection 4 the Employer alleged that Peti-
tioner harassed antiunion employees "until they
signed a union authorization card and agreed to vote
for the union and threatened to continue harassment
of said employees until they would have to quit if
they voted against the union." The Regional Director
recommended that both objections be overruled, find-
ing that:
The evidence established that two individuals
alleged to be agents of the Petitioner are not
members of the Union. serve in no official capac-
ity, and are rank and file employees. One acted
as election observer for the Petitioner at the elec-
tion. No evidence was presented nor adduced of
any threats or harassment by anyone.
In its exceptions. the Employer contends that the
Board agent investigating the objections, with whom
arrangements had been made to interview witnesses
at 8:30 and 11 a.m. on September 12. 1978, was also
advised that the Employer would present manage-
ment employee Bowerfind, who was arriving from
Miami, as a witness that morning. Between 9 and
9:15 a.m. the Board agent asked the Employer's rep-
resentative if Bowerfind had arrived, and was told
that he was on the way. Accordingly, the Board agent
said he would wait 30 minutes. Notwithstanding this
statement, the Board agent left the distribution center
shortly thereafter and passed Bowerfind, who, ac-
cording to the Employer, was 3 to 5 minutes from the
distribution center at the time. Bowerfind was at the
facility and available to be interviewed from 9:40
a.m. until approximately 12:45 p.m., but the Board
agent never talked with him. On the basis of these
uncontroverted allegations, the Employer contends
that it was prevented from presenting its principal
witness in support of Objections 3 and 4 and was
thereby prejudiced.
The Regional Director does not discuss these con-
tentions in his report, and my colleagues find no basis
for granting the Employer's request for a hearing or
for further investigation on grounds that the Em-
ployer has not demonstrated that Bowerfind's testi-
mony would have supported its objections. I cannot
agree with the majority's disposition of this issue. For.
as I stated in my dissenting opinion in Aurora Steel
Products, 240 NLRB No. 76 (1979). once an objecting
party has alleged specific objectionable conduct and
provided the names of witnesses,
. .. it was incumbent upon the Region to inter-
view the individuals named by the Employer to
determine the merits of the objection, and the
failure of the Regional Director to have that
done constituted an abuse of discretion. This is
so unless we are henceforth going to require an
objecting party also to submit detailed state-
ments from witnesses, a requirement which here-
tofore has never been imposed.
In the instant case, as in Aurora Steel, the Em-
ployer made specific allegations of conduct which, if
it occurred, would have been sufficient to set the elec-
tion aside, and proffered a witness in support of those
allegations. In these circumstances, also as in Aurora
Steel, I am compelled to conclude that the majority
has abdicated this Agency's function of protecting the
laboratory conditions for the conduct of Board elec-
tions. Accordingly, I would order further investiga-
tion of Objections 3 and 4 and I must dissent from my
colleagues' failure to do so.'
I Although I agree with the Regional Director's recommendation that the
Employer's Objection 2 be overruled, I do so on the basis of my separate
opinion in Shopping Kart Food Market. Inc., 228 NLRB 1311 (1977).
1285