R. Dakin & Co.

National Labor Relations Board - Board Decisions

Jun 21, 1971

191 N.L.R.B. 343 (N.L.R.B. 1971)

R. DAKIN & COMPANY 343
R. Dakin & Company and Warehouse Union Local No.
860, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Cases 20-CA-5671 and 20-RC-8516
June 21, 1971
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
JENKINS AND KENNEDY
On March 6, 1970, the National Labor Relations
Board issued a Decision and Order in the above-enti-
tled case,' finding that R. Dakin & Company (here-
inafter called the Respondent) had violated Sections
8(a)(5) and (1) and 2(6) and (7) of the National Labor
Relations Act, as amended, by refusing to bargain upon
request with the Union certified by the Board as the
exclusive representative of Respondent's employees in
the stipulated appropriate unit. On July 13, 1970, the
Board sua sponte ordered that the record be reopened
and a hearing be held before a Trial Examiner on issues
raised by Respondent's Objections 1 through 6 to the
election conducted on January 16, 1969, which were
originally filed in Case 20-RC-8516. The Respondent
filed a request for clarification of the Board's Order and
on August 12, 1970, the Board denied the request.
On August 18, 1970, the Regional Director for Re-
gion 20 issued a notice of hearing and on October 27,
1970, a hearing was held before Trial Examiner Martin
S. Bennett to determine the issues raised by the objec-
tions. On January 11, 1971, the Trial Examiner issued
his Supplemental Decision attached hereto, in which he
recommended that the objections be overruled and that
the Board reaffirm its Decision. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's Sup-
plemental Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act,
the Board has delegated its powers in connection with
this proceeding to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearings and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer 's Supplemental Decision, the exceptions and
brief, and the entire record in this proceeding,2 and
hereby adopts the findings,' conclusions, and recom-
181 NLRB No 87.
The Respondent's request for oral argument is hereby denied as the
record, exceptions, and briefs adequately present the issues and the posi-
tions of the parties,
' The Respondent excepts to certain of the Trial Examiner's credibility
resolutions. It is the Board's established policy, however, not to overrule a
Trial Examiner's credibility resolutions unless, as is not the case here, the
preponderance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d (C.A.
3).
mendations of the Trial Examiner to the extent consist-
ent herewith.
The election in this proceeding, which eventuated in
a certification of the Union as the representative of
Respondent's employees, was based on a petition filed
on December 5, 1968. Prior thereto, the Union had
filed and withdrawn two petitions: The first was filed on
October 14, 1968, and withdrawn on November 4, and
the second was filed on November 4, and withdrawn on
November 8. The Respondent asserts that the election
should be set aside on the basis of two incidents which
it contends occurred subsequent to the filing of the
initial petition on October 14, and prior to the filing of
the ultimate petition on December 5. The Trial Exam-
iner found that the first of these incidents occurred
prior to the filing of the intitial petition, and could not
be considered for that reason, and that the second oc-
curred following the withdrawal of the second petition
and before the filing of the third petition. As the Trial
Examiner concluded that under the rule of the Ideal
Electric case,4 only conduct which occurred after the
filing of the third petition could be considered, he found
the objection to be without merit and recommended
that the Board reaffirm its prior conclusion that Re-
spondent had unlawfully refused to bargain with the
Union.
It is the Respondent's position that where, as here,
a number of petitions are filed seriatim, the cutoff date
for consideration of alleged objectionable conduct un-
der Ideal Electric should be the date of filing of initial
petition. As the first alleged objectionable conduct oc-
curred prior to the filing of the initial petition, such
conduct could not be considered even under the theory
urged by the Respondent. We further find, in the light
of the history and reason for the Ideal Electric rule,
that the Trial Examiner correctly held that conduct
which occurred during the hiatus between the with-
drawal of the second and the filing of the third petition
could not form the basis for setting aside the election
conducted pursuant to the third petition.
The so-called Ideal Electric rule had its origin in
1952 in the Great Atlantic and Pacific Tea Company,
101 NLRB 1118. Prior to that case, the Board had
applied a rule of estoppel, under which parties were
precluded from relying on any objectionable conduct of
which they had knowledge prior to the, election. In the
A & P case, however, the Board concluded in substance
that its prior policy was inequitable and contrary to
good administrative practice. The Board consequently
concluded that the policies of the Act would be best
effectuated by holding that any substantial interference
which occurred during the "crucial period" before an
election might constitute a basis for setting aside that
4 Ideal Electric and Mfg. Co., 134 NLRB 1275
191 NLRB No. 65
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election , without regard to knowledge or the filing of
unfair labor practice charges. In that case the Board
concluded that the "crucial period" would be, with
respect to consent cases , that period following the exe-
cution of the election agreement , and with respect to
contested cases, that period following the date of issu-
ance of the Regional Director 's notice of hearing.
Although the Board has from time to time changed
the limits of the "crucial period," the Board has never
departed from the principle there established, that
equity and orderly administration require the establish-
ment of a definite cutoff date applicable to the consider-
ation of alleged objectionable conduct . Thus in F W.
Woolworth Company, 109 NLRB 1446, the Board, in
order to more closely equate the time factor in both
consent and Board-ordered elections , changed the
cutoff date with respect to Board -directed elections
from the issuance of the notice of hearing to the date
of issuance of the Decision and Direction of ]Election.
In the Ideal Electric case, the Board in consequence of
its experience following the delegation of decisional
authority in representation cases to Regional Directors,
concluded that the cutoff date in contested cases should
more appropriately be the date of the filing of the peti-
tion . Finally, in Goodyear Tire and Rubber Company,
138 NLRB 453, the Board concluded in substance that
the reasons which initially justified different cutoff
dates in consent and contested cases were no longer
valid, and consequently established the date of the filing
of the petition as the cutoff date in both types of cases.
It is thus evident that in its adoption and subsequent
modifications of the cutoff rule , the Board has consist-
ently adhered to its initial conclusion that the length of
the "crucial period ," and hence the cutoff date, should
be governed by considerations of equity and orderly
administration . Those considerations are equally appli-
cable here. In our opinion it would be destructive of
both underlying concepts to consider conduct allegedly
engaged in before the operative petition . We note more-
over that the only conduct which could be considered
even under the Respondent 's theory occurred during
the hiatus of almost 1 month between the withdrawal
of the second petition and the filing of the third peti-
tion . As there was no petition on file when the allegedly
objectionable conduct occurred and, as there is no evi-
dence to support any claim that the second petition had
been withdrawn so as deliberately to create an insulated
opportunity for the Union to engage in objectionable
conduct , we believe that considering the filing of the
third petition as the proper cutoff date is fully war-
ranted , and it is unnecessary for us to consider what the
result might have been in a different factual context.
Accordingly, we reaffirm both our prior conclusion
that the Respondent 's objections are without merit and
our Order heretofore entered in this matter.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter was
heard at San Francisco , California, on October 27 , 1970. It
stems from the following chain of events . After various repre-
sentation proceedings described below , Warehouse Union
Local No. 860, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, herein
called the Union, was certified by the Board on June 24, 1969,
as the representative of the warehouse employees , including
shipping and receiving clerks, of R. Dakin and Company,
herein called Respondent , with the customary exclusions of
office clericals , guards, and supervisors.
The General Counsel thereafter moved on October 9, 1969,
for summary judgment in Case 20-CA-5671, wherein the
complaint alleged an unlawful refusal to bargain within the
meaning of Section 8(a)(5) and (1) of the Act. On March 6,
1970, the Board handed down a decision finding Respondent
guilty of those unfair labor practices. On July 13, 1970, the
Board reconsidered its decision and ordered the case re-
manded for further hearing. Its order stated as follows:
The Board, upon further consideration , has decided
that, in the particular circumstances here presented, and
before the Board reaches a final decision in this case, it
wishes to have the benefit of record testimony concern-
ing allegations of conduct which transpired following
October 14, 1968, the date on which the first petition was
filed regarding the aforementioned unit. Accordingly,
It is hereby ordered that the record in this proceeding
be, and it hereby is, reopened , and that a hearing be held
before a Trial Examiner on issues raised by Respond-
ent's Objections 1 through 6 to the election conducted on
January 16, 1969, which were originally filed in Case
20-RC-8516.
This, in essence, led to the instant hearing before me and
to this Supplemental Decision . As will appear , the Regional
Director overruled the objections to the election in the repre-
sentation case. So far as herein relevant, he relied upon the
fact that the alleged conduct had preceded the date of the
filing of the third petition. It is a fact that there were three
successive petitions and that the attacked conduct preceded
the third petition.
Briefs have been submitted by the Union and Respondent.
Upon the entire record in the case, and from my observation
of the witnesses , I make the following:
FINDINGS OF FACT
I THE HISTORY OF THE REPRESENTATION CASES
As stated , there were three petitions for an election with all
filed by the, Union for the same unit . The first was filed on
October 14, 1968, in Case 20-RC-8407. This, it is undis-
puted, was withdrawn at the behest of the Regional Office
because of the latter 's desire to comply with its own statistical
timetables . This request was filed by the Union on November
4 and approved by the Regional Office on November 5, 1968.
The Regional Office and the Union agreed that another peti-
tion covering the same unit would be filed simultaneously,
and a second petition was promptly filed by the Union on
November 4, in Case 20-RC-8455, this coinciding with the
withdrawal request in the first case.
This second petition was also withdrawn . According to the
Union, this was done because it wished to investigate a report
that unit employees were laid off. Respondent contends that
it had no knowledge of the Union 's purported reasons. There
is no evidence one way or the other as to the validity of said
belief. Be that as it may, the Union, on November 8, submit-
R. DAKIN & COMPANY 345
ted a withdrawal request and this was approved by the Re-
gional Director on November 13, 1968.
This presents the third petition in Case 20-RC-8516 which
resulted in the certification. This was filed on December 5,
1968, and led to a stipulation for certification upon consent
election. An election was held on January 16, 1969, there
were seven eligible voters and the Union won 4 to 3, The
Employer's objections adverted to above were filed on Janu-
ary 22. The Regional Director's report on March 19 recom-
mended that they be overruled, Respondent's exceptions to
said report were filed on April 10 and the Union was certified
on June 24, 1969.
To recapitulate, the first petition in Case 20-RC-8407 was
filed on October 14 and withdrawn on November 4, 1968.
The second petition in Case 20-RC-8435 was filed November
4 and withdrawn November 8, 1968. The third petition in
Case 20-RC-8516 was filed on December 5, 1968, and re-
sulted in an election on January 16 and a certification of the
Union on June 24, 1969.
Thus, in terms of the application of the rule in Ideal Elec-
tric Company, 134 NLRB 1275, the filing dates are October
14, November 4, and December 5, 1968. As noted, the parties
agree that the withdrawal of the first petition was initiated by
the Regional Office; also there is no evidence disputing the
Union's claim that it believed a reduction in force was immi-
nent, this leading to the withdrawal of the second petition.
The evidence treated below consists of two incidents, one
placed in late October and the second no later than November
15. The Regional Director conceded, in his Report on Objec-
tions, that substantial and material issues of fact had been
raised and that a hearing would have been ordered had the
matters followed the filing of the third petition. See Harrah's
Club, 180 NLRB No. 28.
The record also discloses that Respondent filed a charge
against the Union in Case 20-CB-5671 on February 17, 1969,
well after the election, in essence alleging that the two inci-
dents described below were violative of Section 8(b)(1)(A) of
the Act. A complaint was issued on April 1, 1970, and this
was later withdrawn pursuant to a private accommodation
between the Union and Respondent.
II. THE ATTACKED CONDUCT
The conduct attacked herein consists of two incidents, both
directed at Warehouseman Walter Walker. Walker, curiously
enough, was the instrument for introducing the Union to
Respondent's previously unorganized plant. He testified that
the employees were interested in and had been discussing
unionization. A warehouseman asked him to contact the
Union and an office employee gave him a slip of paper with
the name and telephone number of Business Agent Herbert
Suvaco of the Union. Although Walker personally did not
desire union representation, and was reluctant to make the
call, he ultimately agreed to telephone Suvaco and did so.
According to'the latter, Walker inquired about wage scales
and they discussed the chances of success in unionizing the
plant. A meeting was -arranged.
There is a conflict between the two as to the details of the
two incidents that took place. Walker placed the first one late
in October.' A coworker, Ergos, approached Walker in the
plant and told him that union representatives were outside in
the parking lot and wished to see him. Walker refused and
Ergos left. Ergos returned and advised that the union repre-
sentatives insisted on talking with him.
Walker went outside and the two men introduced them-
selves as Business Representatives Hoffman and Suvaco. This
was his first meeting with the two men and just the three were
present. Suvaco asked Walker to sign an authorization card
and Walker refused. Suvaco replied that if Walker signed at
that time he would escape payment of an initiation fee and
that if he did not he would receive the "dirtiest jobs in the
warehouse, once the Union got in." Walker persisted in his
refusal. Suvaco also stated that if Walker voted for the Union
he, Walker, would not have to pay an initiation fee, but that
if he did not vote for the Union, the payment would be
required; Walker agreed to consider the matter. Walker also
recalled that the two men told him he had "better support the
Union," because if he did not, they would make certain that
he would lose his job.
According to Suvaco, he suggested to Walker in the tele-
phone conversation that he bring some coworkers on the
following day to a nearby restaurant at lunch time. This was
done and Suvaco placed their first meeting at this location
rather than the parking lot. Walker, it may be noted, denied
ever attending a meeting at the restaurant. On this occasion,
according to Suvaco, Walker and two other employees ap-
peared at the restaurant. Each took an authorization card and
Walker took two extra cards, although none were signed.
Walker, in turn, testified that he never received an authoriza-
tion card, claiming that his first glimpse of a card was when
he refused to sign one in the parking lot.
As for the parking lot incident, according to Suvaco, he
and Business Representative Hoffman went to the plant sev-
eral days after the telephone call to check employee senti-
ment. They met with several employees, two of whom signed
cards, and Suvaco asked one of them to get Walker. Walker
appeared and was asked to sign. He replied that he had no
objections, but that he was being made a supervisor and that
the men should do as they chose; he promptly left.
Suvaco denied stating that Walker's lack of support of the
Union would result in his receiving the dirtiest jobs in the
warehouse or would cause the Union to attempt his dis-
charge. He denied promising a waiver of the initiation fee,
stating rather that he uniformly advised his workers that he
was authorized only to waive the fee down to the sum of $25;
neither Ergos nor Hoffman testified herein.
Suvaco's affidavit corroborates Walker to the effect that the
first meeting was in the parking lot, although it does refer to
a subsequent meeting at a restaurant. In addition, Suvaco
deposed that he had no cards with him at the parking lot.
Suvaco also contended that he met with the employees eight
to 10 times, although the affidavit refers to only three meet-
ings. I have therefore credited Walker who impressed me as
an honest witness with a clear recollection of these events,
unlike Suvaco who was vague as to what was said on this
occasion in the parking lot.
However, a preponderance of the evidence does not sup-
port Walker as to the date of the incident. He placed the date
as late in October and following his telephone call by some
3 days. But the first petition was filed early on the morning
of October 14, was processed by the Regional Office, and it
reasonably follows that there were some cards signed as of the
date of filing. Stated otherwise, there is a presumption that a
union does not perform a nugatory act.
And it is undisputed that Walker made the initial contact
of the Union on a date he did not recall. Moreover, according
to Walker, Suvaco appeared at the parking lot some 3 days
later and asked him to sign a card. This tallies with the
affidavit of Suvaco that he received the call early in October
and that the first two meetings were on October 8 and 9.
This, of course, would be after the filing of the first petition As will Stated otherwise, I credit Walker as to what was said but not
appear, the evidence preponderates that it preceded the filing of the petition. as to the date of the incident. I find that a preponderance of
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the evidence places this incident prior to the filing of the
petition on October 14.2
Turning to the second incident, Walker placed this in the
latter part of November 1968. It would appear that this took
place no later than mid-November because Robert Lagouri,
then warehouse foreman but no longer in the employ of Re-
spondent, placed it 2 or 3 days after he entered the employ
of Respondent on November 11, 1968. Lagouri, who im-
pressed me as an objective witness with no interest in behalf
of either side, testified that he was lunching in the plant
lunchroom with Walker and one Magano; the latter is no
longer in the employ of Respondent and did not testify herein.
No other employees were present. One of the warehousemen
advised Walker that two union officials wished to speak with
him outside and Walker responded that he had nothing to say
to them. The warehouseman departed and shortly thereafter
Business Representatives Hoffman and Suvaco entered the
lunch room.
One of them asked Walker to step outside and converse
with them "like a decent human being." Walker replied that
he had nothing to say to them and one of the union represent-
atives cursed him and called him a scab. The union represent-
ative then Stated that he would make it his business to see to
it that Walker was not admitted to the Union, that he would
receive "dirty" jobs after the Union entered the picture and
that the Union would see to it that he was eventually dis-
charged.
Walker readily returned the profanity and Lagouri, at this
point, identified himself as warehouse manager and asked the
union representatives to leave. They promptly left, but, as
they departed, announced that they would picket the ware-
house, because Walker did not support the Union, unless a
formal apology was forthcoming from Respondent.
Walker's version was substantially similar to that of
Lagoun but he identified Hoffman as the basic spokesman on
this occasion. Suvaco's version was substantially different. He
had previously concluded, as he testified, that Walker was
angry, but believed that he might change his mind. He and
Hoffman appeared at the plant and learned that Walker was
in the lunchroom; they went to the lunchroom and Hoffman
asked Walker what was brewing. Walker immediately burst
into some profanity and accused the Union of causing him to
lose a supervisory post. Suvaco suggested to Hoffman that
they leave and the two union, representatives did so, just as
Supervisor Lagouri proposed the same course of action.
Lagouri impressed me as a disinterested and reliable witness
and his version, corroborated by that of Walker, is credited
herein.
As is apparent, this incident took place subsequent to the
filing of the second petition on November 4 and its with-
drawal on November 8. It preceded the third petition filed on
December 5 and occurred some 2 months prior to the election
held on January 16, 1969.
It is undisputed that officials of Respondent were immedi-
ately advised of both incidents. There was no contact of
Board authorities and there was no filing of a charge by
Respondent until after the loss of the election. Stated other-
wise, Respondent was on notice of both incidents for 2
months or more before the election, and the record is silent
as to any attempts by Respondent to respond to these state-
ments by the union representatives or to communicate with
members of the electorate on the topic.
III ANALYSIS AND CONCLUSIONS
I have previously found that the October incident preceded
the filing of the first petition on the morning of October 14.
This objection then must be overruled under the authority of
the Ideal Electric principle.
Furthermore, even if it followed the filing of the first peti-
tion, I do not believe that the petitioner should be assessed
with responsibility under same in view of the fact that the
withdrawal emanated from the Regional Office. In essence
then, the withdrawal was bona fide for administrative reasons
of the Board, and the slate was wiped clean for the second and
subsequent petition.
As for .the later incident, it took place approximately in
mid-November after the withdrawal of the second petition on
November 8 and prior to the filing of the third petition on
December 5, 1968. Here as well, I see no evidence of bad faith
on the part of the petitioner. It assigned an ostensibly valid
reason for its act. To believe otherwise would impel the highly
illogical conclusion, on this record, that it anticipated engag-
ing in improper conduct later in the month and wanted to
clean the slate again . This is not to say that such conduct is
impossible. It is to say that there is nothing in this record to
support such a view.
On balance then, I believe that even under the Ideal Elec-
tric rule the filing date of the third petition is the crucial date.
For the reasons stated, I do not accept Respondent's conten-
tion that all should relate back to the filing date of the first
petition.
Furthermore, when note is taken of the dates involved, I
conclude that -the second incident was quite remote. It hap-
pened in mid-November and the election was 2 full months
later. In addition, Respondent was on immediate notice of
this as well as the prior incident with ample time and oppor-
tunity to respond to the affected employee. To the contrary,
it ignored the situation.'
In view of all the foregoing considerations, I recommend
that the objections be overruled and that the Board reaffirm
its Decision and Order of March 6, 1970 in Case 20-CA-
5671.
' The Union unsuccessfully sought to adduce evidence that Walker was ' I note that in a recent decision overruling objections to an election the
a supervisor . The record discloses that Walker 's salary was larger than that dissent distinguished the case from one like the instant case where there had
of his coworkers; he attributed this to his seniority as the oldest employee been a lapse of time and ample opportunity to respond to the attacked
in the warehouse and this was not challenged herein. conduct. Janler Plastic Mold Corp., 186 NLRB No. 80.