242 N.L.R.B. 1251 (N.L.R.B. 1979)

Nash Finch Co.

National Labor Relations Board - Board DecisionsJun 18, 1979

242 N.L.R.B. 1251 (N.L.R.B. 1979)

NASH FINCH Nash Finch Company and General Drivers and Help- ers Union, Local No. 554, affiliated with the Inter- national Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 17-RC-8654 June 18, 1979 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING( AND MEMBERS JENKINS AND PENEI.LO Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended, a three- member panel has considered determinative chal- lenges and the objectives to an election held on Janu- ary 18. 197 9 ,' and the Hearing Officer's report 2 rec- ommending disposition of same. The Board has reviewed the record in light of the exceptions and briefs, and hereby adopts the Hearing Officer's find- ings and recommendations. [Direction of Second Election' omitted from publi- cation.] MEMBER PENEI.I.O, concurring in part and dissenting in part: I agree with the majority's adoption of the Hearing Officer's recommendation to sustain five of the Peti- tioner's eight challenges to ballots cast at the elec- tion.4 However. for the reasons set forth in Shopping Kart Food Market. Inc.. 228 NLRB 1311 (1977). I strongly disagree with the majority's determination that the alleged misrepresentations detailed in the Employer's Objections 2 and 4 warrant setting aside the results of the election. As I noted in my dissent in General Knit of Ca/liJornia, In., 239 NILRB 619 (1978), I continue to adhere to the sound principles enunciated in Shopping Karl. supra. This case is one of an ever-growing number in which the Board, through its renewed reliance upon the doctrine of Hollvwood C'eranmics ornpan, Inc., 140 NL RB 221 (1962). has frustrated the desires of emploees for union representation. Accordingly as the remaining challenged ballots cannot affect the results of the elec- tion, I would certify the Petitioner and allow it to proceed with the business of collective bargaining without further delay. IThe election vas conducled pursuanl Io a Stipulation f;r ( eriiticitn Upon Consent Electionn the lalf5 a;is 30 I;r.ll and 26 igtlnt.. the Pentlllner; there were 8 challenged hallots. 2 Relevant portions of, the ltearing Officer's report are alllached hereto ;a, an appendix. ) [EF ,eiit)r n omilled rom publication the tlearing ()Officer userruled the P'etlionLr' challeiges to t'i, h lls and. pursuanl to the parties stipulallon. sustained the challenge Ilo anotlher 1251 APPENDIX II1. Oh/cclions. The Employer timel' filed fie objections to the election. At the hearing, the Employer withdrew Ohjection I with my approval. I'he remaining tour objections will he consid- ered below. 'The gravaman oft' the lmploer's ohijections to the elec- tion are found in ()bjections 2 and 4 specificallk O)hection 4. T'hese objections are: 2. I he Petitioner bh its agents. oficers supporters. and certain individuals acting in concert ith Peti- tioner, engaged in misrepresentations of' tacl anid las.s promise of benefit. threat of' reprisal, and ther acts and conduct which ,,arrant setting aside the election. 4. he Petitioner. bh its agents. officers. supporters. atid certain indiiduals actine in concert ith Peti- tioner. misrepresented wage rates at other facilities represented h Teamsters ocals. I'he record evidence reveals that err 3 Younger. the Pleti- tioner's recording secretarN. was in charge of' the Petition- er's organizational campaign at the Emploxer's G(rand Is- land t'acilit\. During the course of the campaign. Younger prepared or caused to be prepared certain materials wshich purportedl\ showed contract provisions secured b the Pe- titioner with tw o Nebraska emplo\ers (lirnk! )ink in Omaha and Safe, a Stores. Inc.) and b other locals ol' the 'Teamsters Union with the Efmployer at its t cilities located at Minneapolis, Minnesota. liberal. Kansas, ind Appleton. Wisconsin (Bd. Exh. 2). Younger prepared the materials relating to the to Ne- braska employers in November 1978. at the outset of the campaign rom contracts he obtained from the Petitioner's Omaha offttice. ie prepared the materials concerning the other f'acliities of the mploler thereafter. from conltiacts receied in the miall romn other 'leamsters L'nilon,' locals (Ir. Exhs. 2. 3 alnd 4. Younlger testified that e hiad re- ceied these contracts (Er. Elxhs. 2. 3. and 4) h D)ecelmber 1978. rom the record eidence. it appears that Youiuger prepared the materials concerning these contracts in No- vember 1978. Ihereatter these malterials (Bd. Exh. 2) \ere made axailable to emploees. 'Fi Te e\tent of' diissemlilllion to emplo ees is not clear froin the record l eonard hrlich. director of' the Emplo,er's distribution center operations. including tile Grand Island itacilit rep- resented the -mplo1er during the campaign and election. Flhrlich testified thIIt he had not see tilhe Petitioner's mate- rials concerning contracts at the EmploNer's other facilities until shortl betflre the election. hrlich ,as a\.re bh around mid-No embier 1978, howeser. that the Petitioner ,as descrihibing to cillploxee the contract a;t tle LEnlplor's Iiberal. Ka1ns1as. tacilit. Ilrlic h kLne' apprioxiima tl 2 weeks prior to the election Ilhat the Petitioner as intrmiing emlploees about contracts at the Flmplo.er's linneapolis. Minnesota. (ruit ;land A;\ssenlbl ) licilit anld Appleton. Wisconsin. (IS.('. Shannon (ormpan! tlacilit\ ()On or about 1lLlanuar\ 15 l1979. YOUer prepalred a111d mailed to ill the emplo cs ol tile t / list oft' eligible voters three separl-ate page of' illatelials . 1 tl. 1 t- tached hereto a I h. I. l.hrllch testllied tlhal hte irst sas; these' 111e;ll'l;ll SI1I te earl\ I.'teriloon ' 't 'clnc. sl\. n.11 JIltl- 242 NLRB No. 198 I)t.('ISI()NS O() NAIION\AI. ABOR R .AlIONS BOARD ary 17. 1979. here is no eidence that tile l.mploer made a response to these materials prior to the election. The EIm- ployer points t these materials. speciically the third page which purportedly shows Teamster contract provisions ap- plicable to the Employer's Appleton. Wisconsin l.iberal, Kansas. and Minneapolis. Minnesota, facilities, as the basis fIor Objections 2 and 4. Page 3 of the alleged objectionable materials (Er. Exh. I) appears to recite information identi- cal to that which appeared in the materials the Petitioner prepared and disseminated to emplosees early on in the campaign (Bd. Exh. 2). At the top of page 3 of the alleged objectionable miateri- als (Er. Exh. I) appears the words: TAKE A GOOD LOOK AT WAGES ALONE GUARANTEED IN WRII'- ING IN A TEAMSTER NEGOTIATED C(ON- TRAC(T/THAT IS l.EGAL AN[) BINDING A'I NASH FIN(CH IN APPLETON. WISONSIN. LIB- ERAL. KANSAS,/MINNEAPOLIS, MINNESOTA. Below this caption appears "UL'nion .Negotialed lklgc. tl Nash Filnch, A4let'o. 14,'isconrin'" with lit listing of job clas- sifications and hourly wage rates effective at given dates. These classifications and wage rates correspond to Schedule A of the Appleton. Wisconsin, contract (Er. Exh. 4). While the rates of pay effective 7/3/77 and 7/2/78 as shown on the document are higher than those listed in the contract. the higher rates apparently reflect cost of living adjustments required under article 25 of the contract. In deed, the docu- ment states that cost of living increases are reflected in these rates. Below these job classifications and hourly wage rates ap- pear the notations: Guaranteed 40 hour work week. to be worked in 5 consecutive 8 hour days, Monday through Friday. Guaranteed 8 hours work or pay daily. These statements are correct as they apply to warehouse employees under article 20, section (a) of the Appleton contract. With respect to truck drivers, however, the guar- anteed work week is 40 hours to he worked in not more than five tours of duty, Monday through Friday (art. 20. sec. 2(a). Er. Exh. 4). Thus, as to truck drivers, there is no guarantee of an 8-hour work day or that the work days will run in consecutive fashion. The document does not delin- eate the application of the stated guarantees as to ware- house employees or truck diivers. The remaining state- ments as to time and a half and double time apply to all employees and appear correct according to the contract (art. 20, sec. 3(a) and 3(c), Er. Exh. 4). The next section of the document is captioned "Union Negotiated Wages at Nash Finch, l.iberal, Kan.va.. " The job classifications, hourly rates of pay. guaranteed weekly pay. and single mileage rates appear to be correctly listed when comparing them to article II of the Liberal, Kansas, con- tract (Er. Exh. 2). Below these listings is the statement: THE COST OF LIVING INCREASE effective 6/4/ 78 was .38C on hourly/rates and 9.5c on mileage rates which would be added to all the above rates. Article II. 3(e) of the Liberal contract provides that all em- ployees shall be covered by the provisions for a cost of living allowance to be effective the first pay period begin- ning on or after June 4, 1978. This cost of' living allowance is to apply to both hourly wages and mileage according to the contract. D[espite this contract laniguage. the evidence establishes that the employees are not being paid the cost of' liinlg alloaances provided for in the contract.' According to Jerry Younger. who swas the onlN witness who seemed to understand the workings of cost of living adjustlents, a cost l of living increase wxould normally not take efl'ect until the second ' ear of a contract. Since the Iiberal contract provided lor a cost of living adjustment effective on the same da) the contract took effect. Younger explained that he telephoned Bud Smith. an official with Teamsters L.nion Local 795 in Wichita Kansas, who ser- vices the Liberal contract. to ascertain the cost of living being paid under the contract. According to Younger. he placed this telephone call to Bud Smith before preparing the alleged objectionable document. Younger testified that Smith told him that the cost of living increases under the l.iberal contract were the same as the Teamsters' National Master Freight Agreement with an increase of' 38c per hour for hourly ages and an adjustment to the mileage rate. Younger explained that the mileage rate of 9.5c appear- ing on the document was incorrect and an "error" on his part. According to Younger. the 9.5 represented a mill in- crease rather than an increase in cents. Article II. 3(e)of' the contract pros ides that "when hourly employees gain Ic per hour under this cost of lix ing provision Road [)rivers (mile- age paid) ,,ill receive .25 mills per mile." sing the cost of liing increase of 38c per hour, the mill increase would be 9.5. Converting this mill increase to cents, the addition to the mileage rates would be .95c rather than the 9.5c which appeared on the document. The final notation on the document concerning the Lib- eral contract is: 1-1/2 times after 8 hours per day or 40 hours per week. Article 11, 4(a) of the contract provides that all hours in excess of 8 hours per day. or 40 hours per week, (except over-the-road drivers) will he compensated at time and one- half'the regular hourly rate. Thus, the notation on the docu- ment appears correct, although it faiils to except road driv- ers. The final section of the document is captioned "''Union N'"oz(iatled Ii a,1g' at Nash lZTfin', l. ininieapolis. litll(e.8o(l1". T'he job classifications and hourly wage rates correspond to section 7:01 through 7:05 of the Minneapolis contract (Er. Exh. 3). Following the job classifications of truck drivers listed on the document is the notation. (city})." While the contract does not contain the city notation. the evidence establishes that the Employer's Minneapolis facility is a 5- man operation involved in loading and unloading merchan- dise. This evidence suggests that deliveries by the Employer would be local or "in city" in nature. Also. the job classifi- cations are spaced closely together making it difficult to ascertain the wage rates for certain of the classifications. Since article 35 of the contract provides for cost of living adjustments. the statement on the document that "COST ' Besides cerlain record lestimony, see Er. Exs 5. 8. and 9. 1252 NASH FIN(H (O)MPANY OF LIVING INC'RtEASE provide for in the contract are not/included in the above rates" is correct. At the bottom of the section covering the Minneapolis contract is: WORK WEEK 5 consecutive days 1-1/2 times the regular hourly rate fior all hours worked after 8 per day or 40 hours per week Double time pas on the seventh consecutive days. The statements that the work week consists of 5 consecu- tive days and double time is paid on the seventh da\ apply to both inside employees and drivers under sections 4:01 and 4:02 of the contract. With regard to time and a halt pay, the statement is correct as to inside employees (sec. 4:01, Er. Exh. 3). Drivers are not compensated at the over- time rate for hours worked in excess of eight hours in and one day. Overtime is paid only for work performed oer 40 hours in an) one work week (sec. 4:02. Er. Exh. 3). In (;eneral Knit of/ (/oblifrnia I. the Board majoriy returned to the standard of review for alleged misrepresen- tations as stated in Ito//v iood ('r lrti~ (' Cotloat. It .? Ac- cording to Holwtood (Ceramtics [A]n election should be set aside only where there has been a misrepresentation or other similar campaign tricker\. which involves a substantial departure from the truth. at a time which prevents the other part or parties from making an effective reply, so that the mis- representation, whether deliberate or not. ma , reason- ably be expected to have a significant impact on the election." Applying this standard to the facts in the instant case. I must consider the timing of the alleged misrepresentation. its impact on the election. and whether it involves a sub- stantial departure from the truth. I am not required to de- termine whether the misrepresentation is a deliberate mis- statement or an inadvertent error. The alleged objectional document is accurate to the ex- tent that it lists job classifications followed by rates of pay contained in Teamster contracts at the Employer's facilities in Appleton, Wisconsin, liberal. Kansas, and Minneapolis. Minnesota. I give little weight to the evidence that emplo,,- ees at Liberal. Kansas. are not being paid according to the cost of living adjustments, specifically the hourly wage in- crease of 38C. The Liberal contract (art. 1I. 3(el) Er. Exh. 2) clearly provides for a cost of living allowance to be effective the first pay period on or after June 4. 1978. Moreover the alleged objectional document indicates at the top of the page that it will describe contract provisions when it directs the reader to look at wages "GUARANTEED IN WRIT- ING IN A TEAMSTERS NEGOTIATED ('ONTRACT' .... " Since the document recites what the contract provides with respect to cost of living wage adjustments, I find that it was not a material misrepresentation that employees were not being paid hourly wages according to the contract. I also find that the basic thrust of the document concerns wage rates which are correctlb stated when the, appear 6239 NLRB 619 1978) 140 NLRB 221 1962 Id at 224 following job classifications. These factors militate against a finding that the document contains substantial misstate- ments which would warrant setting the election aside. On balance, however, I am constrained to find that the nisstatement on the document with respect to the cost of living increases on mileage rates in the Liberal, Kansas, contract amounted to a substantial and material misrepre- sentation o flct which had a significant impact on the elec- tion While the Petitioner may argue that the misstatement of' the cost of Iiving increase of the mileage rates was a simple clerical error. the difference of' placement of the deci- mal point bh one tenth (from .95 to 9.5} represented a sub- stantial increase of the mileage rates, from 20.75c per mile to 30.25c per mile in 1978. Correctly stated. the increase of the mileage rate should he 21.70c per mile. It appears from the Employer's records that approximately 20 of ts em- ployees would be in the job classification of road drivers.' Thus, the o erstatement of mileage rates would have a di- rect impact on approximately one-third of the eligible vot- ers and a lesser impact on the remaining voters who could obsere the inflated mileage rates. In assessing the impact of the misstatement, one mnust also consider the closeness of the vote. 30 otes in favor and 26 against representation hb the Petitioner with 8 challenged ballots. Since the document containing the misrepresented mile- age rates was mailed to all the employees on the lxceZlior list on Monda., Januar I15. 1979. the Employer had little. ift' an opportunit. to respond prior to the January 18. 1979, election. I am mindful that the misrepresentation on the mileage rates first appeared in docunments prepared at the outset of the campaign and disseminated to employees lBd. Exh. 2. Moreover. Ehrlich. the Fmployer's represent- ative in the organizational canipaign. was aware at the start of the campaign that the Petitioner was describing the lib- eral contract as part of its organizttional efiforts. Neverthe- less, and absent an, clear e idence to the contrary, I credit Ehrlich that the Enmplo er was first aware of the misrepre- sentation of the mileage rates on Wednesday afternoon. January 17. 1979, at a time when it was unable to mount an effective response to the document. Finally, it should be noted that the document containing the misrepresented mileage rates was mailed t all employees on the Ecelsior list. unlike the earlier documents (Bd. Exh. 2) which could be accepted or rejected hb those employees who chose to attend the Petitioner's meetings. I do not consider it a defense to the overstatement of mileage rates that the wages increase as it appeared (.38C) technically amounted to an understatement of wage adjust- ments pursuant to the cost of living provision of the Liberal contract. Most readers would no doubt assume that a .38c represented 38c rather than something less than half a cent. Certainly this was the assumption and belief of the parties at the time of the hearing. Moreover, the substantial over- statement of the mileage rates coupled with a substantial ' 1 have considered he other alleged misrepresentalions in the document, specificallII the tIac thaIi erain of he staed conraci prowlisions dealing with A,.rk ,eek and oserilnle dol ni)t applI ti truck ,r road drpiers as discussed ahove I consider the Inapplcabill o l these prosls, in. tI, he minor discrep- ancies hasing no ppreciahle rnip.l n he electln :"Sce Bd h 3 hih shis department cedc 24, "Irans & [)elhers- and Pt I h 2 hich hlits 19 to 20 elphees in depairtment 24 1253 1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD understatement of the wage increase could only have served not consider the overstatement of the mileage rates to be a to create confusion in the minds of voters who read the promise of benefit since there is no evidence that the Peti- document. Accordingly, I recommend that Objection 4 and tioner assured employees that they would receive the mile- that portion of Objection 2 which alleges that the Petitioner age rates or wages listed in Employer Exhibit I if they engaged in misrepresentations of fact be sustained. voted for representation by the Petitioner. No further evi- I have examined the other two pages of Er. Ex. I and dence was adduced by the Employer in support of Objec- have found no additional misrepresentations of either fact tion 2. 1, therefore, recommend that the remainder of this or law which would warrant setting aside the election. I do objection be overruled.