Towne Bus LLC

National Labor Relations Board - Board Decisions

Sep 12, 2007

350 N.L.R.B. 1253 (N.L.R.B. 2007)

TOWNE BUS LLC
350 NLRB No. 91
1253
Towne Bus LLC and Local 854, International Broth-
erhood of Teamsters, Petitioner
Towne Bus LLC and Amalgamated Transit Union
Local 1181-1061, AFL–CIO, Petitioner. Cases
29–RC–11389 and 29–RC–11390
September 12, 2007
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS
KIRSANOW AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held December 8, 2006, and the hearing officer’s report
recommending disposition of them, pertinent portions of
which are attached. The election was conducted pursuant
to a Stipulated Election Agreement. The tally of ballots
shows 5 votes for Petitioner Amalgamated Transit Union
Local 1181-1061, 36 votes for Petitioner Local 854, In-
ternational Brotherhood of Teamsters, and 80 votes
against the Petitioners, with 6 challenged ballots, an in-
sufficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings and recommendations1 and finds that the elec-
tion must be set aside and a new election held.

1 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to overrule Petitioner Amalgamated Transit
Union Local 1181-1061’s Objection 1.
To the extent that the hearing officer stated in her report and recom-
mendations on objections that “there is no evidence that the employee
manual contained any changed terms or conditions of employment, or
promised any new benefits,” we note that the report, read in its entirety,
clearly indicates that the hearing officer found that the employee man-
ual contained a “promise of future benefits.” We agree with this find-
ing, and rely on it in adopting the hearing officer’s report and recom-
mendations. Specifically, the record shows that the employee manual
issued on December 1, 2006, purported to set forth the existing wage
rates and health insurance premium contributions of all of the Em-
ployer’s employees as of that date. The employee manual also pro-
vided for future increases to certain benefits: a January 1, 2007 5-
percent increase in Employer contributions to employee medical insur-
ance premiums and a June 30, 2007 pay-rate increase for all job classi-
fications. We are satisfied that these promised benefits represented a
future change in the employees’ terms of employment.
We also note that the Employer has failed to demonstrate that the fu-
ture benefits promised in the employee manual were “part of an al-
ready-established company policy.” See Mercy Hospital Mercy South-
west Hospital, 338 NLRB 545 (2002) (quoting American Sunroof
Corp., 248 NLRB 748 (1980), modified on other grounds 667 F.2d 20
(6th Cir. 1981)). Further, for the reasons stated in her report, we agree
that “the timing of the release of the employee manual creates an infer-
ence that the Employer was trying to influence employee voting,” and
that “the Employer failed to rebut this inference.” Finally, we disavow
the hearing officer’s characterization of Dentech Corp., 294 NLRB
924, 965 (1989), as standing for the proposition that “the distribution of
[Direction of Second Election omitted from publica-
tion.]
CHAIRMAN BATTISTA, dissenting.
The objecting party has not met its burden of showing
that the manual represented a change in terms of em-
ployment. In order to demonstrate a change, one must
show the prior terms and then compare these to the as-
sertedly new terms. The manual sets forth the assertedly
new terms, but the record fails to disclose the prior terms.
Thus, there has been no showing of a change.1
My colleagues acknowledge the hearing officer’s ex-
plicit statement that “there is no evidence that the em-
ployee manual contained any changed terms or condi-
tions of employment, or promised any new benefits.”
They then note that the hearing officer found that the
manual contained a “promise of future benefits.” The
prior sentence does not support the latter one. In short,
the evidence does not support the finding. My col-
leagues refer to an increase in employer contributions to
employee health insurance (slated for January 1, 2007)
and an increase in pay (slated for June 30, 2007). How-
ever, there is no indication that these increases were not
previously scheduled to occur on those dates. This
would explain the hearing officer’s explicit statement
that there is no evidence of change. It is, of course, the
Objecting Party’s burden to show a change.
HEARING OFFICER’S REPORT AND
RECOMMENDATIONS ON OBJECTIONS
. . . .
Objections No. 2, 3, and 4:
In these objections, Petitioner 1181 essentially contended
that during the critical period, the Employer promised and
granted benefits to its unit employees in order to induce them to
vote against Petitioner 1181. As an offer of proof Petitioner
1181 provided the 2004–2008 collective-bargaining agreement
between Local 1181 and WE Transport, which purportedly has
the same family owner as the Employer herein,7 and a docu-
ment entitled, “Waverly Avenue employee manual.” At the
hearing, Petitioner 1181 again offered these documents to sup-
port its objections. The Employer denied that it promised or
granted any benefits during the critical period. The Regional
Director, in his report, directed that Petitioner 1181’s Objection
Nos. 2, 3, and 4 be set for hearing regarding only the timing of
the release of the employee manual, whether the manual had

an employee manual during an organizational campaign is coercive and
violates Section 8(a)(1) of the Act.”
1 The prior terms of the one employee about whom we do know,
Alyce Weitzel, appear to be the same as those set forth in the manual.
7 Weitzel testified that “The Marksons” own both WE Transport and
Towne Bus; she worked for WE Transport at the Smithtown yard from
1998 to 2002, when she moved to the Waverly yard location of Towne
Bus in a seamless transfer of wages and benefits. (Tr. 11–14; 34.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1254
been previously distributed, and whether it contained any prom-
ised changes in terms and conditions of employment.
Weitzel, the only witness at the hearing, testified that she re-
ceived her first and only copy of the “Waverly Avenue em-
ployee manual” prior to the election. (Tr. 20–21; 32; P Exh. 3.)
Weitzel had to go to the office to sign that she had received the
manual, and it was handed to her. She had never before re-
ceived a copy of this manual, or one like it. At the time she
was given the manual, no representations were made to her
regarding its contents. Finally, she testified that her terms and
conditions of employment had not changed prior to or subse-
quent to the election, she was told by management that they
would not change, and her terms and conditions of employment
have mirrored those found in Petitioner, 1181’s collective-
bargaining agreement with WE Transport since 2002,8 when
she transferred to the Waverly Avenue location. Coincidentally
or not, the cover of the employee manual states “July 1, 2004–
June 30, 2008,” identical to the effective dates of Petitioner
1181’s collective-bargaining agreement with WE Transport.
(Tr. 11–15; 21–22; 30; 32–33; P. Exhs. 2 and 3.) Weitzel read
the employee manual after she received it and confirmed that it
accurately represented her terms and conditions of employ-
ment, and there was nothing in it that was new or different.
(Tr. 35.) The Employer failed to present any witnesses to ex-
plain the timing of the release of the employee manual.
It is not objectionable for an Employer to choose to provide
organized and nonorganized employees with identical or simi-
lar wages and benefits, as long as it does not make changes to
those terms and conditions of employment during the critical
period. See: Allegany Aggregates, Inc., 327 NLRB 658, 659
(1999), where announcement of showup pay policy during the
critical period was not objectionable because it was not a new
benefit. Here, there is no evidence that the employee manual
contained any changed terms or conditions of employment, or
promised any new benefits. In fact, Weitzel testified that she
read the manual, and it was accurate, and management told her
that there were not going to be any changes, and to her knowl-
edge, there were none. However, the only evidence in the re-
cord regarding the release of the employee manual is that it
occurred during the critical period, and it had not been previ-
ously distributed. The Employer was given full notice and
opportunity to explain the timing of the release of the docu-
ment, as set forth in the Regional Director’s report. In addition,

8 Petitioner 1181 alleged for the first time at the hearing that the Em-
ployer changed the charter posting procedure, however, Weitzel testi-
fied that she is not on the charter list. (Tr. 22.) In addition, Weitzel
testified that the easel on which charters were posted was in the trailer
where the drivers’ room was located during the building of the new
Waverly Avenue building, but then it was not in the drivers’ room
anymore once they moved into the new building in the summer of
2006. This is prior to the critical period. (Tr. 23–24.) In addition,
there is nothing in the employee manual regarding an easel, or the
posting of charters on an easel. Weitzel testified that there were no
changes to her terms and conditions of employment in the employee
manual. (Tr. 35.) In any event, I do not have the authority to consider
this late objection. See Precision Products, 319 NLRB 640, 641
(1995) (hearing officer lacks the authority to “consider issues that are
not reasonably encompassed within the scope of the objections that the
Regional Director set for hearing.”)
the hearing officer stated on the record that evidence regarding
the timing of the release of the document was the Employer’s
burden and had not been addressed. The Employer declined to
present evidence in this regard. (Tr. 38–40.)
Documents such as the employee manual, handed out during
the critical period, have been found objectionable when they
contain changes in terms and conditions of employment. See
Southgate Village, Inc., 319 NLRB 916, 925 (1995), where the
Board found that the timing of the distribution of a new em-
ployee manual 4 days before the election, announcing changes
in benefits, was timed by the Employer “in order to heighten
the impact of those benefits and thereby influence the outcome
of the election.” See also Sun Mart Foods, 341 NLRB 161, 162
(2004), where the Board “will infer that an announcement or
grant of benefits during the critical period is objectionable;
however, the employer may rebut the inference by establishing
an explanation other than the pending election for the timing of
the announcement or the bestowal of the benefit.” (citing Star,
Inc., 337 NLRB 962, 963 (2002)). Here, the Employer distrib-
uted a manual during the critical period that not only mirrors its
collective-bargaining agreement at its organized facility, high-
lighting, in effect, that no union is necessary to obtain the same
benefits, but most importantly, also contains the same term as
the collective-bargaining agreement.
While the Employer is within its rights to mirror an organ-
ized facilities’ wages and benefits, and compare the benefits
received in the organized facility versus the nonunion facility,
here, it also included a term for the continuation of those mir-
rored benefits for 18 months after the election, the same term as
the collective-bargaining agreement. See TCI Cablevision of
Washington, 329 NLRB 700 (1999), citing Walgreen Co., 203
NLRB 177, 181 (1973) (where the employer compared the
wages and benefits received in its nonunion facilities with those
received in its organized facilities, which the Board found was
simply a recitation of “historical fact.”). Providing a term for
the receipt of identical benefits that extends well into the future,
in my view, amounts to a promise that benefits over the next 18
months will continue to be identical to the organized facilities’
benefits, and increase as those at the organized facilities in-
crease. In this regard, I find that both TCI Cablevision of Wash-
ington, supra, and Viacom Cablevision, 267 NLRB 1141
(1983), which was relied on by the Board in TCI Cablevision of
Washington, are distinguishable from the instant case. The
Board found that the employer in Viacom Cablevision “dis-
claimed any promise of what the employees might receive in
the future.” TCI Cablevision of Washington, supra at 700.
Here, the Employer, by telling the employees on the face of the
document that their benefits will continue for the next year and
a half to mirror those found it its collective-bargaining agree-
ment with Petitioner 1181 at another facility, is making a prom-
ise to employees about future benefits.
Because the Employer’s manual contained a promise of fu-
ture benefits, the timing of the release of the employee manual
creates an inference that the Employer was trying to influence
employee voting. The Employer failed to rebut this inference.
I also note that the evidence shows that the manual had never
before been distributed, which I find further supports the infer-
ence. Absent any evidence that the manual had previously been
TOWNE BUS LLC 1255
distributed to employees with a 4-year long term, or that there
was some compelling reason to distribute it during the critical
period, the inference that the Employer was trying to influence
the outcome of the election by the distribution of the manual
remains unchallenged.
Finally, the Board has found that the distribution of an em-
ployee manual during an organizational campaign is coercive
and violates Section 8(a)(1) of the Act. Dentech Corp., 294
NLRB 924, 965 (1989) (where the Board adopted the adminis-
trative law judge’s findings that an “employee handbook was
issued to employees after the Company knew of union organ-
izational activity among its employees, and that it was issued to
discourage such union organizational activity.”) Similarly, I
find that the unrebutted inference herein that the Employer
timed the release of the employee manual to discourage em-
ployees from voting for the union, is objectionable conduct
sufficient to overturn an election.
Accordingly, I recommend that the portions of Objection
Nos. 2, 3, and 4, concerning the unexplained and potentially
vote-influencing timing of the first release of the employee
manual, and the promise of benefits contained therein, are sus-
tained. The remaining portions of Objections 2, 3, and 4 are
overruled.
. . . .