Turner's Express, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1971

189 N.L.R.B. 106 (N.L.R.B. 1971)

106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turner's Express, Incorporated and Teamsters Local
Union 822, affiliated with the International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America, Petitioner. Case
5-RC-6853
March 19, 1971
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, BROWN, AND
KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election approved on July 9, 1969, an
election by secret ballot was conducted on August 6
and 7, 1969, under the direction and supervision of the
Regional Director for Region 5 among the employees
in the stipulated unit. At the conclusion of the
election, the parties were furnished with a tally of
ballots which showed that of approximately 66
eligible voters, 32 votes were cast for the Petitioner, 22
were cast against the Petitioner, 6 votes were
challenged, and 2 ballots were void. The challenged
ballots were not sufficient in number to affect the
result of the election.
On August 14, 1969, the Employer filed timely
Objections to Conduct Affecting the Outcome of the
Election, together with a motion to dismiss the
petition. The Regional Director conducted an investi-
gation and, on October 21, 1969, issued his Report on
Objections and Notice of Hearing in which he found
that the investigation disclosed the existence of
certain "substantial and material questions" and
directed that a hearing be held before a Hearing
Officer who would prepare recommendations to the
Board.
Following such a hearing, in his report, issued on
April 15, 1970, the Hearing Officer recommended that
the objections be overruled in their entirety and that
the Petitioner be certified as the collective-bargaining
representative of the employees. Thereafter, the
Employer and Petitioner filed timely exceptions to the
Hearing Officer's Report, together with supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no
prejudicial 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
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. The parties stipulated, and we find, that all
truckdrivers, warehousemen, and shop employees
employed by the Employer at its 1300 Shelton
Avenue, Norfolk, Virginia, location; excluding all
other employees, office clerical employees, guards
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. The Board has considered the Hearing Officer's
Report, the Employer's and the Petitioner's excep-
tions and supporting briefs, and the entire record in
this case, and hereby adopts the findings, conclusions,
and recommendations of the Hearing Officer, as
amplified below.
The Hearing Officer found that the warehouse
foreman, E. W. Robbins, and shop foreman, Garland
Tebo, were supervisors within the meaning of the Act
and that, during the course of the Union 's election
campaign, they made their prounion sentiments
known to various employees and encouraged them to
vote in favor of the Union. The Hearing Officer
further found that the remarks made by Robbins and
Tebo to employees were not threatening in nature, nor
viewed as such by the employees. We agree with these
findings.
Both Robbins and Tebo were "minor supervisors"
who were themselves unsure as to whether or not they
were entitled to vote in the union election. Each
indicated to employees his intentions to vote for the
Union, and, in fact, each appeared at the election and
attempted to vote. Because Robbins and Tebo
considered themselves to be eligible voters, their
conversations with the men concerning the Union
appear to have been on an "employee to employee"
basis, rather than as a supervisor speaking to his
supervisees. Certainly, we see nothing in this record to
indicate that Robbins and Tebo were speaking to
employees in their capacity as supervisors. Rather, all
the evidence points to the fact that Robbins and Tebo
were merely expressing their own personal views and
that the employees understood that these remarks
were Robbins' and Tebo's own and not those of the
Employer. In any event, it cannot be argued that the
employees were misled into believing that Robbins
and Tebo were acting on behalf of the Employer
because, during the course of the election campaign,
the Employer made it abundantly clear to the
189 NLRB No. 23
TURNER'S EXPRESS, INC. 107
employees that it strongly opposed unionization of
the facility.
In Stevenson Equipment Company, 1 the Board
discussed at length the impact that supervisory
participation in union organizing campaigns can have
upon employees . There , the Board noted that such
activity could have two different effects on employ-
ees. One , in situations where supervisors actively
encourage employees to vote for the union and the
employer takes no known stance to the contrary, the
employees might be led to believe that the employer
favors the union . The other conceivable effect
involves the possibility that such conduct could
coerce an employee into supporting the union out of
fear of future retaliation by a union -oriented supervi-
sor.
When the conduct of Robbins and Tebo is
examined in light of the foregoing considerations, it
'becomes obvious at once that , due to the Employer's
antiunion campaign , the employees were in no way
misled into believing that Robbins and Tebo were
acting on behalf of the Employer . Nor, in our
judgment , is there any evidence to support the
conclusion that the employees were coerced into
voting in favor of the Union out of fear of future
retaliation by Robbins or Tebo. As the Board
indicated in Stevenson, there must be a reasonable
basis for believing that fear of supervisory retaliation
destroyed the employees ' freedom of choice in the
election before the Board will set aside an election on
this basis . Here , both Robbins and Tebo2 were
"minor supervisors" whose opportunities for affecting
the employment status of regular employees were
decidedly limited . Furthermore, neither Robbins nor
Tebo gave any indication to employees that they
would use their authority as supervisors to punish
those who failed to support the Union. Finally, as the
Board observed in Stevenson, such a fear of retaliation
is unlikely in circumstances where an employee
recognizes that any maltreatment or punishment by a
supervisor predicated upon the employee's opposition
to the union can be brought to the attention of higher
management officials who share the employee's views
on unionization. The opportunity for employees to
protest any such unfair treatment is clearly available
here, where both President D. L. Turner and Vice
President W. P. Davis assume an active role in
running the business and have directly made known
to employees their strong opposition to unionization.
Accordingly, for the foregoing reasons, we find that
the prounion activities of Supervisors Robbins and
Tebo did not impair the employees' freedom of choice
in the election, or constitute interference which would
warrant setting aside the election.3
Therefore, as we have overruled the objections, and
as the tally of ballots shows that the Petitioner has
received a majority of the valid votes cast, we shall
certify the Petitioner as the employees' representative.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Teamsters Local Union
822, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, has been designated and selected by a
majority of the employees in the appropriate unit and
that pursuant to Section 9(a) of the National Labor
Relations Act, as amended, the said labor organiza-
tion is the exclusive representative of all employees in
such unit for purposes of collective bargaining with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
1 174 NLRB No. 128.
2 Tebo was terminated by the Employer on August 13, 1969, 1 week
after the election.
3 See William B. Patton Towing Company, 180 NLRB No. 16.