Labriola Baking Company

National Labor Relations Board - Unpublished Board Decisions

Apr 17, 2015

13-RD-089891 (N.L.R.B. Apr. 17, 2015)

NOT TO BE INCLUDED PJMc
IN BOUND VOLUMES Chicago, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
LABRIOLA BAKING COMPANY
Employer
and Case 13-RD-089891
TEAMSTERS LOCAL 734
Union
and
JUVENTINO SILVA
Petitioner
DECISION AND CERTIFICATION OF REPRESENTATIVE
The National Labor Relations Board, by a three-member panel, has considered
objections to an election held October 8, 2014, and the Regional Director’s report
recommending disposition of them. The election was conducted pursuant to a Decision
and Direction of Second Election. The tally of ballots shows 14 for and 8 against the
Union, with no challenged ballots.
The Board has reviewed the record in light of the exceptions1 and briefs, has
adopted the Regional Director’s findings and recommendations,2 and finds that a
certification of representative should be issued.

1 The Employer excepts to the Regional Director’s decision to not conduct a
hearing. Under Sec. 102.69(d) of the Board’s Rules and Regulations, a Regional
Director shall conduct a hearing if he or she concludes that the objections raise
substantial and material factual issues. In order for the Board to conclude that a
Regional Director’s decision to not conduct a hearing was unreasonable, the objecting
CERTIFICATION OF REPRESENTATIVE

party has the burden of coming forward with evidence that establishes a prima facie
case in support of its objections. See Park-Chevrolet Geo, Inc., 308 NLRB 1010, 1010
fn. 1 (1992). In this case we find that, even presuming the truth of the Employer’s
proffered evidence and contentions, it failed to establish a prima facie case in support of
its objections. Therefore, the Regional Director did not err here. Durham School
Services, LP, 360 NLRB No. 108, slip op. at 1 (2014).
2 In adopting the Regional Director’s recommendation to overrule Employer
Objection 1, we find that this objection is improper because it does not concern the
conduct of this election or conduct affecting the results of this election as required by
Sec. 102.69(a) of the Board’s Rules and Regulations. Instead, Objection 1 is
essentially a motion for reconsideration of the Board’s Decision and Direction of Second
Election in Labriola Baking Co., 361 NLRB No. 41 (2014), and, as such, is untimely
under Sec. 102.65(e)(2) of the Rules and Regulations.
Although Member Johnson adheres to the dissenting position he expressed
jointly with Member Miscimarra that the results of the prior election in this proceeding
should not have been set aside, 361 NLRB No. 41 slip op. at 4–9, he agrees with his
colleagues’ rationale for denying reconsideration of the prior decision and overruling
Employer Objection 1.
In adopting the Regional Director’s recommendation to overrule Employer
Objection 2, we affirm his finding that the Employer failed to establish that Noe Ornelas
was the Union’s agent. Additionally, even assuming, arguendo, that Ornelas was the
Union’s agent, we affirm the Regional Director’s finding that the Employer failed to
establish that Ornelas’s alleged threat of job loss to Doug Templeton was objectionable.
A union agent’s alleged threat of job loss to an employee is objectionable only if the
employee could reasonably believe that the union or its agent had the ability to carry out
the threat. See Pacific Grain Products, 309 NLRB 690, 691 (1992); Janler Plastic Mold
Corp., 186 NLRB 540, 540 (1970); cf. Lyon’s Restaurants, 234 NLRB 178, 179 (1978).
Here, the Employer did not proffer any evidence that established that Templeton could
have reasonably believed that the Union or Ornelas, a rank-and-file employee, had the
ability to carry out the alleged threat. Further, Ornelas’s alleged threat was only
directed to one employee, there is no evidence it was disseminated to other bargaining
unit employees, Ornelas apologized for his alleged threat, and the Union won the
election by a six vote margin. See Taylor Wharton Division, 336 NLRB 157, 158 (2001).
Member Johnson finds it unnecessary to pass on whether Ornelas was the
Union’s agent because, as discussed above, Ornelas’s alleged threat of job loss to an
employee was not objectionable under the standard for evaluating party conduct.
For the reasons stated by the Regional Director, we also reject the Employer’s
allegation that the Union engaged in objectionable electioneering under Milchem, Inc.,
170 NLRB 362 (1968). See Boston Insulated Wire & Cable Co., 259 NLRB 1118
(1982), enfd. 703 F.2d 876 (5th Cir. 1983).
In the absence of exceptions, we adopt pro forma the Regional Director’s
recommendation to overrule Employer Objection 3.
IT IS CERTIFIED that a majority of the valid ballots have been cast for Teamsters
Local 734, and that it is the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time route sales drivers and relief sales
drivers employed by the Employer at its facility currently located at
3701 W 128th Pl, Alsip, IL; but excluding all technical and
administrative employees, office clerical employees and guards,
professional employees and supervisors as defined in the Act.
Dated, Washington, D.C., April 17, 2015.
__________________________
Mark Gaston Pearce, Chairman
__________________________
Harry I. Johnson, III, Member
__________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD