Trencor, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1998

325 N.L.R.B. 955 (N.L.R.B. 1998)

955
325 NLRB No. 172
TRENCOR, INC.
1 On January 15, 1998, Administrative Law Judge William N.
Cates issued a bench decision. On February 4, he issued the attached
supplement to bench decision pursuant to Sec. 102.35 of the Board’s
Rules and Regulations. The Respondent filed exceptions and a sup-
porting brief. The Charging Party filed a limited cross-exception to
correct the transcript and a reply brief. The Respondent filed a re-
sponse to the Charging Party’s limited exception.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We grant the Charging Party’s motion to correct the transcript.
The correct date on L. 3, p. 88 of the appendix to the judge’s deci-
sion is August 3.
3 Member Hurtgen adopts the judge’s finding that the Union did
not make the alleged preelection ‘‘Union-party’’ promise. Accord-
ingly, he finds it unnecessary to rely on the judge’s alternative find-
ing that even had such a promise been made, it was not objection-
able.
4 This summary judgment decision is not reported in Board vol-
ume 320.
1 The Board’s summary judgment decision is not included in
Board volume 320.
2 The underlying representation election was held on August 3,
1995.
3 Trencor, Inc. v. NLRB, 110 F.3d 268 (5th Cir. 1997).
4 I rendered the Bench Decision pursuant to Sec. 102.35(a)(10) of
the Board’s Rules and Regulations.
5 I concluded company employee and in-plant committee member
DeLARA was not an agent of the Union and that if he made any
statement regarding a party it was made postelection. Even if he had
made a preelection statement regarding a party, such is not attrib-
utable to the Union. See, e.g., bgWindsor House C & D, 309 NLRB
693 (1992), and Advance Products Corp., 304 NLRB 436 (1991).
Trencor, Inc. and United Steelworkers of America,
AFL–CIO, CLC. Case 16–CA–17725
June 18, 1998
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND HURTGEN
The issue in this test-of-certification proceeding is
whether the judge correctly found that the Respondent
failed to prove, in defense of its refusal to recognize
and bargain with the Union, that the Union engaged in
objectionable conduct and interfered with employees’
free choice in the representation election underlying
the Union’s certification as collective-bargaining rep-
resentative of a unit of the Respondent’s employees.1
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,2
and conclusions3 and to adopt the recommended Order
as set forth in our original Decision and Order, 320
NLRB No. 78 (Feb. 26, 1996).4
ORDER
The National Labor Relations Board reaffirms its
original Order and orders that the Respondent,
Trencor, Inc., Grapevine, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in that Order.
Elizabeth Washka, Esq., for the General Counsel.
M. Brett Burns, Esq., for the Respondent.
Bruce Fickman, Esq., for the Union.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This case
was heard pursuant to the National Labor Relations Board’s
(the Board) unpublished Supplemental Decision and Order
Directing Hearing (Chairman Gould and Members Fox and
Higgins) issued on November 12, 1997, in Trencor, Inc.,
Case 16–CA–17725. In its supplemental decision, the Board
noted it issued, on February 26, 1996, an original Decision
and Order in this proceeding. Trencor, Inc., 320 NLRB No.
78.1 In its original Decision and Order, the Board found that
Trencor, Inc. (the Company) violated Section 8(a)(5) and (1)
of the National Labor Relations Act (the Act) by refusing
United Steelworkers of America AFL–CIO, CLC’s (the
Union) request to bargain and to furnish necessary and rel-
evant information following the Union’s certification in Case
16–RC–9800.2 In so finding, the Board rejected, what it con-
sidered, the Company’s attempts to relitigate issues raised in
the prior representation proceeding. The Company filed a pe-
tition for review of the Board’s Order (320 NLRB No. 78)
with the United States Court of Appeals for the Fifth Circuit
and the Board cross-petitioned for enforcement. The Fifth
Circuit Court of Appeals, on April 8, 1997, issued a deci-
sion3 denying enforcement of the Board’s Order and re-
manded this proceeding with instructions to hold an evi-
dentiary hearing on the Company’s postelection objection al-
leging that the Union interfered with employees’ free choice
by promising ‘‘the biggest party in the history of Texas,’’
and that the Union would buy ‘‘all the food and beer.’’ The
Board accepted the court’s remand, regarding it as the law
of the case, and ordered the evidentiary hearing limited to
the Company’s aforementioned election objection.
On January 15, 1998, following a 1-day trial in Fort
Worth, Texas, I rendered a Bench Decision4 finding no merit
to the Company’s postelection objection. I found no cred-
itable evidence that Union Agent Bill Fears, or any other
agent of the Union,5 ever at any preelection time promised
a party (big or otherwise) if the Union won the election.
Union Agent Fears did tell employees they could, and would,
meet at a shade tree near the plant following the election, re-
gardless of the outcome, to celebrate or cry.
There is no dispute that a postelection party was held;
however, the idea and planning for the party did not take
place until after the election had been held. The postelection
announcement for the party reads in part as follows:
Now you have a Union. Now it’s time to make your
Union a good one, and that takes everyone working to-
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956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I have corrected the transcript by making physical inserts, cross-
outs, and other obvious devises to conform to my intended words
without regard to what I may have actually said in the passages in
question.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
gether. Starting now, the PAST IS PASSED. Whether
you fought for or against makes no difference now. We
are all in the same family and TEAMWORK is now the
key to PROGRESS.
There is nothing more ‘‘American’’ than a good bat-
tle at election time. But it’s also very ‘‘American’’ to
all join together for progress after the majority has spo-
ken. There were lots of good people on both sides of
this campaign. We need all of them on the same side
now.
. . . .
To start the process of TEAMWORK, we want to in-
vite everyone and their family to a Victory Picnic [Au-
gust 12, 1995].
. . . .
I concluded the Union did not engage in any objectionable
conduct by its participation in, and sponsorship (to the extent
it did) of, this postelection party to which everyone was in-
vited.
I certify the accuracy of the portion of the transcript, as
corrected,6 pages 83 to 94 (inclusive) containing my Bench
Decision, and I attach a copy of that portion of the transcript,
as corrected, as an appendix.
CONCLUSION OF LAW
The Company’s postelection objection is without merit.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
It is recommended the Company’s postelection objection
be overruled.
APPENDIX
BENCH DECISION
83
Administrative Law Judge’s Exhibit 1, the two-page affi-
davit, just so the record is clear, is identical to Union 20,
which you labeled the affidavit as Union 20. Union 20 was
not received in evidence, because no one offered it, but of
my own motion I am receiving the affidavit and relabeling
it as Administrative Law Judge’s Exhibit 1.
(Document above referred to was marked for identification as
ALJ Exh. 1 and received in evidence.)
JUDGE CATES: This is my decision. In deciding the case,
I’m going to cover a few background points over which there
should be no dispute, and even if my notes are incorrect on
the background information, all of that information is set
forth in the Board’s earlier decision, or in the circuit’s deci-
sion, or in the Order setting this hearing. I have simply inked
out some notes that I think would be helpful to anyone un-
derstanding my decision or reviewing the case.
All I’m pointing out is that if these background facts are
incorrect, they can easily be corrected by referring back to
the Board’s decision reported, I believe it is, in volume 320,
and the circuit court’s decision, which is 110 F.3d 268 (5th
Cir. 1997).
So all of these facts that I’m putting out as background
are facts that you can readily review and see if they are cor-
rect.
The election was held on August 3, 1995, there were 99
eligible voters, 70 voted for the Union, 26 voted against the
Union, there were 9 challenged ballots, the challenged ballots
84
were not sufficient in number to affect the outcome of the
election. The Company filed objections to the election, the
Regional Director for Region 16 recommended the objections
of the Company be overruled; thereafter, the Union was cer-
tified as the collective-bargaining representative.
The Company refused to bargain with the Union, and in
November 1995, the Union filed unfair labor practice charges
against the Company. The Company admitted that it was re-
fusing to bargain, but asserted the Union’s misconduct had
tainted the election, and that the election should be set aside.
On or about February 26, 1996, the Board issued its Deci-
sion and Order, and granted the General Counsel’s Motion
for Summary Judgment, that is, a motion for summary judg-
ment, with respect to refusing to bargain and a refusal to
provide information.
The Board concluded the Company’s objections should, or
were, litigated in the representation proceeding.
The Board, in it’s Order, directed the Company to bargain
with the Union, post appropriate notices, and comply with
the Union’s request for information. The Company appealed
that decision of the Board to the Fifth Circuit Court of Ap-
peals, and the Board cross-petitioned.
On April 8, 1997, the Fifth Circuit Court of Appeals de-
cided the case, and in doing so, the court addressed, ‘‘the
biggest party in Texas,’’ and made reference to the conten-
tion the Company was making, that the Union offered
85
conditional inducements to win employees’ support in the
election. Specifically the Company contended Union Agent
Bill Fears told employees that if the Union won the election,
it would host, quote, ‘‘The biggest party in the history of
Texas,’’ close quote, and that the Union would buy, quote,
‘‘All the food and beer.’’
The circuit court remanded the case to the Board, and the
Board, in turn, in an unpublished order, directed the division
of judges to hold a hearing on the Company’s objection.
Specifically, the circuit court and the Board ordered that I
consider what evidence, if any, would support the contention
that the Union, through its agent, Bill Fears, promised that
the Union would host the biggest party in the history of
Texas, and that the Union would buy all the food and beer.
Before I decide the facts and announce those, let me just
briefly refer to the standards that the Board requires in con-
ducting elections.
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957TRENCOR, INC.
The Board’s standards must reasonably further the goal of
providing an atmosphere in which employees can make un-
constrained choices concerning unionization.
The goal of holding representation union elections is to
allow employees to choose freely and fairly whether they
want the union to act as their collective-bargaining represent-
ative.
Free and fair decisions, whether employees want a union
to act as their collective-bargaining representative, are impos-
sible
86
if the atmosphere surrounding the election is poisoned by
cohersive conduct, which induces employees to base their
vote, not their convictions, but on a fear, or on other im-
proper considerations.
Having said that, the laboratory conditions test of the
Board must be applied realistically, with the result that less
than perfect campaigns will not always require setting aside
an election. The Board has a policy against inducements
made during the course of a union election, and that policy
is rooted in the idea that employees’ votes should be gov-
erned only by consideration of the advantages and disadvan-
tages in unionization in his or her work environment, and not
by any extraneous inducements of a pecuniary value.
Now, that’s the standard I will be applying to the facts,
as I will find them herein.
First, what, if anything, did Mr. Fears say at the August
2 meeting he held with employees regarding the upcoming
election the next day? First off, Mr. Fears denied he made
any mention at that meeting, or at anytime during the cam-
paign, that if the Union won the election, they would host
the biggest party in Texas. He denied making that statement,
or making a statement to that effect.
I credit Mr. Fears’ testimony that he did not make such
a statement. Mr. Fears acknowledges, however, he made a
statement that they would all get together at the tree after the
87
election, no matter what the outcome was. He said that they
would either get there and cry together or celebrate together.
I credit that testimony.
The parties did meet at the tree after the election, and it
is undisputed that at least some of those gathered there were
drinking beer. I think Mr. Fears acknowledged that he per-
haps brought either a 6-pack or a 12-pack, he couldn’t recall
which, and they drank at the tree that afternoon.
I find that credible testimony, based on a number of fac-
tors. The employees that testified here, specifically Mr. Wal-
lis, acknowledged the tree was a place where they’d gather
even before the advent of the Union, and drink beer from
time to time. Mr. Whitaker indicated that this was not some-
thing new, drinking beer at the tree, which was a short dis-
tance from the plant and also close to a convenience store
that sold beer, it worked out very fine both ways, it looks
like. So I find they did meet, and they did consume beer at
the tree, following the election.
Mr. Fears testified, and I again credit his testimony that
the employees raised the possibility of having a further party
later on that resulted in the party that was held on August
12, as depicted in the Union’s Exhibit 3. The party was held
at the Silver Lake Park in Grapevine, Texas.
There’s no question that the Union publicized that party,
and encouraged all to attend the party, to the extent of put-
ting out fliers that were printed in English on one side and
Spanish on the
88
other side.
So I find the Union, after being asked by the employees
at the tree on August 3 arranged for, as Mr. Fears testified,
the party at Silver Lake, to the extent that it was he who
contacted the local authorities at the particular park to be
able to have the party there, and that the Union purchased
and took to the party hamburger patties, hot dogs, and the
wrappings, the bread wrappings, I believe he made reference
to, the buns for the hamburgers and hot dogs, and perhaps
even purchased some of the beer.
I think it’s further undisputed, based on the testimony of
Mr. Wallis and Mr. Fears, that various of those individuals
attending that party on August 12 brought ribs, barbecue, po-
tato salad, and other food items, as well as other beer items,
to this party. I persuaded, in conjunction with Mr. Fears’ tes-
timony, that the party probably started around 3 o’clock. Mr.
Fears says he concluded the party at around 10 o’clock. Then
we have a little conflict with Mr. Wallis saying that the party
didn’t start at that time, and that he shut it down at 3 or 4
o’clock in the morning.
That discrepancy in testimony does not bother me in the
least, nor does it impact the outcome of this case, in my
opinion I don’t think there’s anything terribly inconsistent
with that; perhaps, Mr. Wallis and some others did stay until
3 or 4 o’clock in the morning, or maybe they left earlier. If
they were
89
drinking, I don’t think it would be unreasonable to conclude
that maybe they weren’t watching their watches as to when
they left there.
So, I find the Union publicized this party that was held
on August 12. I find they purchased food supplies, not all
of the supplies for the party, but food supplies for the party,
and some beverages for the party. I believe Mr. Fears even
testified he didn’t make a good estimate as to how many
people would be there, because they ran out of food.
Does the fact that the Union gave this party, or arranged
for this party, or even termed it in their flyer as, ‘‘A victory
picnic,’’ impact the outcome of this election to such a man-
ner that it would constitute objectionable conduct? The an-
swer, in my opinion, to that question is clearly, no, it did
not, based on the evidence that I have credited.
The party was not arranged for nor discussed until August
3, that is, whichever day the election was held, the discus-
sions of the second party came about at the meeting at the
tree that followed the election.
So the arrangements for the picnic on August 12 could not
have had an impact on the outcome of the election, because
it was not conceived or announced prior to the election.
And if you read the flyer that the Union provided it in-
vited all individuals to attend the party. They clearly make
it known that whether you
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958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
90
fought for or against the union makes no difference now,
we’re all in the same family, and teamwork is the key to
progress, so the party was for everyone. They noted that it
was sort of the American way to have a good battle at elec-
tion time, and then everyone join together after the results
are known.
So the question comes: Does any of the statements made
by Mr. Fears, or any of the conduct of the Union that’s out-
lined in the evidence before me, constitute objectionable con-
duct to the election? The answer is no, in my opinion, be-
cause the meeting at the tree on the day of, but following
the election, was for the stated purpose of crying or celebrat-
ing, it was not based on the the outcome of the election.
The second party that was held on August 12 was in the
nature of bringing the employees together for the further
good and to further the aims of the employees, as envisioned
by the Union, and was not based on a reward or any vote
in the election.
That does not, however, resolve the entire issue here. We
heard the testimony of Mr. Whitaker that he was told by Mr.
DeLara that Mr. DeLara had been to a union meeting the day
before election, and then came to work, and he walks up to
Mr. Whitaker, based on Mr. Whitaker’s testimony, and told
him they had had this union meeting last night, and that Mr.
Fears had said they were going to have the biggest party in
Texas, with all the beer and food they could consume.
91
Mr. Whitaker said he and Mr. DeLara discussed whether
this would be the biggest party in Texas, or whether Miller
Lite Beer had talked about having a party in Texas and had
billed their party as being the biggest party in Texas.
Mr. Whitaker said he was fearful that free alcohol would
persuade voters, because of so many people gathering down
at the tree from time to time and drinking beer.
Mr. Whitaker is no longer employed by the Company, he
says he has no connection to the Company, that the only
contact he’s had with the Company since he left there was
that he contacted a woman friend at the plant on at least one
occasion.
So what motive does Mr Whitaker have, if any, to misstate
the facts? There’s not a lot of evidence here that would indi-
cate that Mr. Whitaker would deliberately misstate facts.
I have some trouble, however, with Mr. Whitaker’s testi-
mony, for the following reasons. Mr. Whitaker readily ac-
knowledged he did not hear Mr. Fears make any statement
with respect to any parties, that he heard it only from Mr.
DeLara. Mr. Whitaker acknowledged he didn’t attend the
parties, either of them, but he’s testifying to what Mr.
DeLara told him. Mr. DeLara did not testify in this proceed-
ing.
I am persuaded that Mr. DeLara spoke with Mr. Whitaker,
based on the detail which Mr. Whitaker goes into, but I’m
fully convinced that the meeting did not take place as testi-
fied to by Mr. Whitaker the day before or the day of the
election. I’m
92
persuaded it took place at some point after that fact, when
the party had been arranged for, which would place it after
the election.
I so conclude among other reasons, because of the credited
testimony of Mr. Fears that he never made any such state-
ment, and that any statements Mr. DeLara made to Mr.
Whitaker, if made at all, took place after the election, not be-
fore. But assuming arguendo that Mr. DeLara said to Mr.
Whitaker exactly what Mr. Whitaker testified to, and that it
did take place either the day before or the day of the elec-
tion, or at any other time before the election the result would
be same.
I find there’s insufficient showing on this record that the
Union knew of, instigated, condoned, or was responsible for
the comments of Mr. DeLara, even if made.
But, again, I do that based on the credited testimony of
Mr. Fears that he didn’t say this, he had no knowledge of
it, the first knowledge that the Union had of this statement
was when the Company filed its objections to the election.
It was only that point that the Union learned of the conten-
tion advanced by Mr. Whitaker that Mr. DeLara had said the
comments attributed to him by Mr. Whitaker.
Therefore, did the comments that Mr. Whitaker testified to
taint the results of the election, even if made, and the answer
is no, because I’m persuaded that it did not take place before
the election, if it took place at all.
93
I’m even persuaded, that assuming arguendo, it did take
place before the election, that the Union did not know of, in-
stigate, or condone the comments by Mr. DeLara.
So having concluded that, there was no objectionable con-
duct based on the credited evidence, I shall direct that the
Company’s objection to the election that is before me be
overruled, and that the Board and the courts validate the
election, and uphold the certification of the Union as a col-
lective-bargaining representative, with all that entails.
I need not go further into that, because the remand from
the circuit to the Board, and the Board to me speaks only
to my making findings of fact and conclusions of law with
respect to whether there’s validity to this objection or not,
and I’ve concluded there is not.
The procedure for filing exceptions to my decision, as I
understand the Board’s Rules and Regulations, is that I will,
once I receive a copy of the transcript, make any necessary
corrections thereon and certify the pages of the transcript
containing my decision as my decision and serve it on the
parties. It’s my understanding that the appeals period com-
mences to run from that date. Please, and underline this, fol-
low the Board’s Rules and Regulations, don’t rely on my un-
derstanding of those rules and regulations.
Let me state that it has been a pleasure to be in Fort
Worth,
94
Texas, and I appreciate the professional manner in which the
case was presented by all parties, including the Govern-
ment’s statement that they have no horse in this race, and
the fact that they were able to produce the only affidavit in
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959TRENCOR, INC.
this case, which by the way, I made a part of the record
herein. With that, this trial is closed. Off the record.
(Whereupon, at 2:10 p.m., the hearing in the above-entitled
matter was adjourned.)
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