Jos. L. Rozier Machinery Co.

National Labor Relations Board - Board Decisions

Mar 13, 1969

174 N.L.R.B. 1170 (N.L.R.B. 1969)

1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jos. L . Rozier Machinery Company and Teamsters,
Chauffeurs , Warehousemen & Helpers Local
Union No. 385 , affiliated with the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America Petitioner.
Case 12-RC-2937
March 13, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification upon
Consent Election executed by the parties on
November 7, 1967, elections by secret ballot were
conducted in the above-entitled proceeding on
December 8, 1967, under the direction and
supervision of the Regional Director for Region 12
(Tampa, Florida). Upon the conclusion of the
election, a tally of ballots was furnished the parties
in accordance with National Labor Relations Board
Rules and Regulations and Statements of
Procedure, Series 8, as amended.
The tally of ballots in Unit A shows that there
were approximately 2 eligible voters and that 2
ballots were cast, both of which were against the
Petitioner, and none were void ' In Unit B there
were approximately 37 eligible voters and 37 ballots
were cast, of which 18 were for the Petitioner, 16
were against the Petitioner, and 3 ballots were
challenged. The Employer filed timely objections to
conduct affecting the results of the election in Unit
B.
The Regional Director caused an investigation of
the objections to be made, and thereafter, on
February 15, 1968, issued and served on the parties
his Report and Recommendations on Challenged
Ballots and Objections to the Election In his report,
the Regional Director recommended that the
challenges to the ballots be sustained, and that the
objections be overruled in their entirety
Alternatively, in the event that the Iatter
recommendation were not adonted, the Regional
Director recommended that a hearing be held to
resolve the credibility issues arising from Objection
2 and part (a) of Objection 3.
Thereafter, on February 28, 1968, the Employer
filed timely exceptions to the Regional Director's
Report
On April 18, 1968, it appearing to the Board that
the Employer's objections raised issues that could
best be resolved by a hearing, it was ordered that a
hearing be held before a Hearing Officer designated
by the Regional Director, with directions to prepare
and cause to be served upon the parties a report
'No objections were filed with respect to the election in Unit A The
Regional Director issued his certification of results on December 18, 1967
containing resolutions of the credibility of witnesses,
findings of fact, and recommendations to the Board
as to the disposition of Objections 1, 2, and part (a)
of Objection 3. A duly scheduled hearing was held
before Hearing Officer Robert G. Romano on May
31, 1968 and June 10 and 11, 1968. The Employer
and the Petitioner appeared at the hearing and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
bearing upon the issues.
On August 1, 1968, the Hearing Officer issued his
Report on Employer's Objections to Election,
finding that the evidence failed to support the
objections in question and recommending that they
be overruled in their entirety. The Employer filed
timely exceptions to the Hearing Officer's Report
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.
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 Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. We find, in accordance with the stipulation of
the parties, that the following employees of the
Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act: All employees at the
Employer's Orlando, Florida facility, including
mechanics and helpers, electrical mechanics,
welders, track press men, track and roller rebuild
men, parts runner, parts counter salesmen, parts
delivery man, parts service accountants, CTS
specialists, service analysts, shipping clerks, sales
appraisers, engine and line salesmen ; excluding all
office clerical employees, guards, and supervisors as
defined in the Act.
5. During the course of the hearing, the Employer
sought to amend its objections to include allegations
that 1) a Union agent told employees that if the
Caterpillar dealership were sold, the Union or labor
contract would have to go with the franchise and the
next buyer would have to honor the Union or labor
contract, which was a material misrepresentation of
the Employer's franchise arrangement ; and 2) a
union agent told employees that the Union would
not bargain energetically on behalf of certain
employees who lacked union interest. The. Hearing
174 NLRB No. 176
JOS. L. ROZIER MACHINERY CO.
Officer denied the amendments as untimely raised.
We denied the Employer's request for special
permission to appeal the ruling of the Hearing
Officer, subject to the right to raise the issue in
exceptions to the Hearing Officer's Report.
The Hearing Officer found that the second
objection by amendment had sufficient bearing on
Objections 1 and 3(a) to be considered on its merits,
but resolved the conflicting testimony in favor of the
Union, and recommended that the Board overrule
Objections 1, 2, and 3(a), in their entirety. We
cannot agree.
The basic point in issue as to the second objection
offered by amendment is the credibility of two
witnesses, Robert Woodward for the Employer, and
Paul Parker, president and business manager of the
Union. Woodward testified that at the December 4
meeting, "Someone asked the question, what about
the people who were apparently not for the Union in
the sales department, .. that if they had no members
or no employees in those groups, what did the
Union do about bargaining for it, and Mr. Floyd
said we, of course, have them in the bargaining
group and, in essence, we will have to bargain for
them but we don't have to work very hard at it if we
don't have any cards signed in those categories."
Both Parker and, initially, Business Agent Floyd
testified that Parker conducted the meeting of
December 4 and Floyd came in 5 or 10 minutes
before the meeting was over. On cross-examination,
Parker denied that he said to any living person on
earth that the Union would not bargain as hard on
behalf of the salesmen or that the Union could be
hard of hearing when the salesmen had some
problems. The Hearing Officer credits this
testimony of Parker, and also finds that Parker
chaired the meeting of December 4 from the
beginning and Floyd came in later towards the end
This finding is contrary to the evidence.
Mike Staggs, a witness for the Union, testified
that the meeting of December 4 was conducted by
Mr. Floyd, not Parker. Staggs was certain this was
the case because he recalled having to telephone
Floyd to remind him of the meeting. Staggs did not
remember Parker being present during the meeting.
Upon being recalled as a witness, Floyd verified
Staggs' testimony, stating that his memory had been
refreshed and that he, not Parker, conducted the
meeting of December 4. Since this revised testimony
was offered by Parker's fellow union witnesses, and
since Parker did not thereafter take the witness
stand for the purpose of reaffirming his original
1171
testimony that he had chaired the meeting, we think
it only fair to conclude that the Union is conceding
the fact that Floyd did conduct the December
meeting
In view of this testimony, the denials of Parker as
to not having made or having heard certain
statements made at the meeting he did not attend
are immaterial
In light of the fact that the Hearing Officer found
Woodward a generally reliable witness, and
appeared to reject his testimony primarily because
of the Hearing Officer's own erroneous conclusion
that Parker conducted the meeting, from which
premise he further concluded that Woodward
"exhibited some degree of confusion as to the
presence and activity of President and Business
Manager Parker vis-a-vis Floyd," we cannot ignore
the testimony of Woodward. Except for Parker's
denial, which we find irrelevant, the "generally
credited" testimony of Woodward, that Union
Agent Floyd stated that the Union would not have
to bargain very hard for categories in which there
were no cards signed, stands undenied by Floyd or
any other witness.
In Knapp-Sherrill' we found that statements made
by union agents that the Union would represent
members differently from other employees clearly
warranted setting aside the election. The same result
is required here;3 we shall therefore set aside the
election held in Unit B and direct that a second
election be held.
ORDER
It is hereby ordered that the election conducted
here on December 8, 1967, among the Unit B
employees of Jos. L. Rozier Machinery Company at
its Orlando, Florida, facility, be, and it hereby is,
set aside.
[Text of Direction of Second Election' omitted
from publication.]
1171 NLRB No 171
'In view of our disposition of this issue , we find it unnecessary to pass
upon the other objections
'An election eligibility list, containing the names and addresses of all the
eligible voters, must be filed by the Employer with the Regional Director
for Region 12 within 7 days after the date of issuance of the Notice of
Second Election by the Regional Director The Regional Director shall
make the list available to all parties to the election No extension of time
to file this list shall be granted by the Regional Director except in
extraordinary circumstances Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed Excelsior Underwear Inc, 156 NLRB 1236