Peabody Solid Waste Management DeWaldDownload PDFNational Labor Relations Board - Board DecisionsNov 8, 1974214 N.L.R.B. 817 (N.L.R.B. 1974) Copy Citation PEABODY SOLID WASTE MANAGEMENT DeWALD 817 Peabody Solid Waste Management DeWald and In- ternational Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths , Forgers & Helpers, Lodge #10, Petitioner . Case 20-RC-11831 November 8, 1974 DECISION AND CERTIFICATION OF REPRESENTATIVE By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election approved February 7, 1974,' an election by secret ballot was conducted on March 12, under the direction and supervision of the Regional Director for Region 20, among the employees in the appropriate unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that, of approximately 50 eligible vot- ers, 46 cast ballots, of which 34 were cast for Peti- tioner, and 9 were cast against Petitioner. There were three challenged ballots which were insufficient in number to affect the results of the election. Thereaf- ter, on March 18, the Employer filed timely objec- tions to conduct affecting the results of the election, copies of which were duly served on the parties. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director caused an investigation to be conducted and, on April 12, issued and duly served on the parties his Report on Objections and Notice of Hearing in which he ordered that a hearing be held to resolve the issues raised by the Employer's objections. Pursuant to the Regional Director's Report on Ob- jections and Notice of Hearing, a hearing was held on May 7, at San Francisco, California, before Hear- ing Officer Larry A. Frankel. All parties appeared and participated in the hearing and were given full opportunity to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. On May 17, the Hearing Officer issued and duly served on the parties his Report and Recommendation in which he recommended that the Employer's objec- tions to the election be overruled in their entirety and that a certification of representative be issued. There- after, the Employer filed timely exceptions to the Hearing Officer's report and a brief in support there- of. Petitioner filed a brief in support of the Hearing Officer's Reports and Recommendation. Pursuant to the provisions of Section 3(b) of the i All dates herein are in 1974 unless otherwise noted National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that no preju- dicial 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 pur- poses of the Act to assert jurisdiction herein. 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated and we find that the fol- lowing employees constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(c) of the Act: All production and maintenance employees and truckdrivers employed by the Employer at its Fremont, California, plant but excluding all of- fice clerical employees, guards, professional em- ployees and supervisors as defined in the Act. 5. The Board has considered the Hearing Officer's report in light of the Employer 's exceptions and brief , the Petitioner's brief, and the entire record herein and has decided to adopt the Hearing Officer's findings 2 and recommendations ,' for the reasons set forth below. The Employer contended that certain alleged statements made by union officials to employees dur- ing the critical period prior to the election, pertaining to the Union's waiver of initiation fees, constituted objectionable conduct under the holding of the Su- preme Court in N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973). The Hearing Officer re- counted portions of the testimony of witness Storey, Respondent's sole witness in support of its objection, 2 The Employer excepts to various findings of the Hearing Officer on the ground that he erred in crediting certain testimony It is the established policy of the Board not to overrule a Hearing Officer 's credibility resolu- tions unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect The Coca-Co la Bottling Company of Memphis, 132 NLRB 481, 483 ( 1961), Stretch -Tex Co , 118 NLRB 1359, 1361 (1957) We find no sufficient basis for disturbing the credibility resolu- tions in this case 3 The Hearing Officer inadvertently stated in his Report and Recommen- dation that there were 56 eligible voters , of which 46 cast ballots for Peti- tioner and that the Employer filed objections on May 18 We hereby correct these inadvertent mistakes and find that there were 50 eligible voters, of which 34 cast ballots for the Petitioner, and that the Employer filed objec- tions to the election on March 18 214 NLRB No. 126 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the effect that he had attended two meetings called by the Union prior to the election, that at the first of these meetings , held 3 or 4 weeks prior to the election, four employees and two union representa- tives attended, that Union Representative Huddle- ston was present, and that an unidentified union agent said the initiation fee was $200, but since they were organizing the Union the initiation fee would be waived. Assuming arguendo the truth of this testimo- ny of Storey, the Hearing Officer found no objection- able conduct, citing B. F. Goodrich Tire Company, a Division of the B. F. Goodrich Company, 209 NLRB No. 182 (1974). The Hearing Officer, however , seems not to have dealt with record testimony by Storey that at the first meeting an unidentified union agent stated "if ev- eryone came in now, it would only be first month's dues," and that subsequently, at a general meeting of approximately 43 employees prior to the election, Union Official Gonzaga stated that initiation fees would be waived "being's everybody's coming into the union now" [emphasis supplied].4 The Employer contends that these alleged statements conditioned the Union's waiver of initiation fees on the employ- ees' joining the Union before the election. For the reasons set forth below, we are unwilling to rely on Storey's testimony and, therefore, find it unnecessary to determine whether, standing alone, the above al- leged remarks of union representatives would consti- tute a waiver proscribed under Savair, supra. We note that Storey was not able to identify the alleged union official who was supposed to have made the objectionable waiver statement at the al- leged first meeting, that other employees identified by Storey as present at that meeting were not called upon to give corroborative testimony, and that Union Business Agent Huddleston denied knowing Storey or being at any first meeting as alleged by him. For these reasons we do not regard Storey's tes- timony regarding the first meeting as entitled to sig- nificant weight. Furthermore, the Hearing Officer credited the tes- 4 Compare this with the situation to Inland Shoe Manufacturing Co, Inc, 211 NLRB 724 (1974) timony of Gonzaga that he told the employees at the subsequent general meeting that he would ask the International to waive initiation fees for employees of Peabody and that such a waiver would be effective until an agreement was reached with the Employer. Besides resolving adversely to the Employer's con- tentions what was said concerning a waiver of initia- tion fees at the second meeting, that credibility find- ing, which we adopt herein, casts doubt on the accu- racy and reliability of Storey's testimony as a whole. In any event, Gonzaga's clear expression of union policy to some 43 employees concerning the waiver of initiation fees clarified and resolved any possible ambiguities or doubts which may have been created at any earlier meeting of a small group of three or four employees, such as testified to by Storey above-especially since Storey acknowledged that most, if not all, the employees present with him at the first meeting were in attendance when Gonzaga stat- ed what the terms of the waiver would be. Accordingly, we find that the Union's offer to waive initiation fees was open to all employees of Peabody until a bargaining agreement was reached with the Employer and, therefore, was not objection- able within the meaning of B. F. Goodrich, supra.5 Thus, as we have overruled the Employer's objec- tions, and as the tally of ballots shows that the Peti- tioner had received a majority of the valid votes, we shall certify it as the exclusive bargaining representa- tive of the employees in the unit found appropriate. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Lodge #10, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bar- gaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. 5 See Western Refrigerator Company, Subsidiary of the Hobart Manufactur- ing Co, 213 NLRB No 40 (1974) Copy with citationCopy as parenthetical citation