Howard Johnson Distribution CenterDownload PDFNational Labor Relations Board - Board DecisionsJun 19, 1979242 N.L.R.B. 1286 (N.L.R.B. 1979) Copy Citation 1 (1 Bufkor-Pelzner Helpers Inc., Re- pro- DEClSlON 1978,l 2. 'The foi, 9(a) Ohjection F w d Murkel. Generul Culijorniu, Inc., Penello Cerumics Company. Inc." General Knrr, m~srepresentations to Penello In wlth recomrncndat~on allegations so aprimu,fucre under Gcnerul Knir. the Korr, nor ohjcctionahle Shopping Karl. Karl refuslng recelve objection principles Hr~l~vwood Cprunrrrs th:~t misrepresenta!ions ohjeclionahle Empluyer suppl~ed Ibr wh~ch IS cognizable Holh*,wd Ccr.rcm~- ic.~ emhraced Gcnerul K~lir. In failme any hasis for l o 1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Howard Johnson Company d/b/a Howard John- son Distribution Center andGeneral Drivers, Ware- housemen and Local Union 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Petitioner. Case 16-RC-7729 June 19, 1979 AND CERTIFICATION OF REPRESENTATIVE The Board has considered objections to an election held on August 7, 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 3, and 4 was insufficient, as the Board agent failed to interview certain witnesses who allegedly would have supportgd 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 the 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 election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was two and none against. the Peti- tioner; there were no challenged ballots. pursue the investigation further. Regency Electronics, Inc., 98 N LRB 627 972); Division. 169 NLRB 998 (1968). Here, the Employer's ex- ceptions are insufficient to justify remanding this case as they do not specify the disagreement with the gional Director's findings of fact and they do not vide any indication of what the Employer's witnesses might testify to, were they permitted to testify. which would contravene the Regional Director's findings2 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 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 office clerical employees employed at The Howard Johnson Distribution Center, 3420 Ave- nue F East. Arlington, Texas, excluding drivers, warehousemen. guards, watchmen and supervi- sors as defined in the Act. With respect to 2. the Regional Director found that the alleged misrepresentations did not warrant setting aside the election under the Board's decision i n Shopping Kurt Inc., 228 NLRB 1311 (1977). Subsequently. i n Knit of 239 NLRB 619, which issued on December 6. 1978. the full Board. Members and Murphy dissenting. overruled Shopping Kurt. and returned "to the standard of review for alleged misrepresentations most cogently articulated in Holly- wood 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 i n and, under that standard, find that the are not sufficient warrant setting aside the election. Member adheres to his position i n Shopping Kort and. accordance the of the Regional Director, also finds no merit i n this objection. I t should also be noted. i n this regard. that the Employer's failure to adequately support the misrepresentation in its exceptions as to make out case was in no way induced hy Employer's reliance on Shopping the then-prevailing Board law. I n this connection. as noted above. the Employer claims that the Board agenl here initially instructed the Employer not to submit evidence i n support of Objection 2 since the misrepresentation allegations. even i f true. were under I n its hrief to the Board. the Employer complained that the Board agent's reliance on Shopping for to evidence on this ignored the fact that the Board might return to the enunciated in and the al- leged might be found under this standard. Notwithstanding these protestations. the has nowhere evidence consideration under the standard i n and to do so has not dem- onstrated sending the care back the Regional Director. 242 NLRB No. 184 ployer's do so.' Johnson Distribution Center, 242 NLRB 1284, also a g m w~th rmjority's adopt~on of the Regional Dlntor's be ovemlcd. I sd bar18 my issued I would remand this proceeding to the ,,,a opinion In Shoppmng Kart Food he., (1977). HOWARD JOHNSON DISTRIBUTION CENTER 1287 Objections 3 and 4, and I dissent from my For the reasons set forth in full in my dissenting colleagues' failure to opinion in The Howard Johnson Comany d / b / a How- MEMBER MURPHY,dissenting in part: 'Although I theard recommendation that Objection 2 do on the of Market, 228 NLRB 1311 Regional Director for further investigation of the Em- Copy with citationCopy as parenthetical citation