Willey'S Express, Inc.

National Labor Relations Board - Board Decisions

May 31, 1985

275 N.L.R.B. 631 (N.L.R.B. 1985)

WILLEY'S EXPRESS
Willey's Express, Inc. and International Brother-
hood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , Truck Drivers Union
Local #170, Petitioner . Case 1-RC-18231
31 May 1985
DECISION AND DIRECTION -
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board has consid-
ered determinative challenges in and objections to
an election held 13 September 1984 and the hearing
officer's report recomrilending- disposition of them.
The election was conducted pursuant to a Stipulat-
ed Election Agreement. The tally of ballots shows
10 for and 10 against the Petitioner, with 2 chal-
lenged ballots.
The Board has reviewed the record in light of.
the Employer's exceptions and brief and the Peti-
tioner's answering brief and adopts the hearing offi-
cer's findings and recommendations' only to the
extent consistent with this Decision and Direction.
The Employer - has excepted, inter alia, to the
hearing officer's recommendation that its Objection,
11 be overruled. For the-reasons set forth below,
we find merit in this exception.2
At all times material herein, the Employer has
provided vision and dental insurance to the unit
employees. These insurance benefits have been pro-
vided through the Employer's participation in the.
Northern New England Benefit Trust. One of the
trustees for this trust fund is the Employer's presi-
dent Gibbons. The trust fund is composed of both
employer and union trustees. According to Gib-
bons, the unit employees are legitimately covered
under this trust fund because the Employer is al-
ready a contributor to the fund, through its collec-
tive-bargaining agreement with a sister local,
Teamsters Local 633, for certain employees of its
Concord, New Hampshire location. Gibbons testi-
fied that the status of contributor entitles the Em-
ployer to include under the fund's coverage the
i We adopt the heanng officer's recommendation that the challenges
to the ballots cast by employees John Hulse and Robert Richard be over-
ruled . We thus agree with the heanng officer's findings that Hulse and
Richard are regular employees as opposed to casual employees and are
therefore eligible voters Contrary to the Employer's assertions, the
record evidence does not support the claim that the parties intended that
"regular" in the unit description of the Stipulated Election Agreement be
limited to the meaning urged by the Employer Rather, on the basis of
the record before us, it appears that the parties' use of the term was the
meaning commonly applied by the Board Therefore, like the hearing of-
ficer, we have applied the Board's traditional community-of-interests
standards in resolving the unit placement issues involving Hulse and
Richard -
2 In view of our disposition of this case , we find it unnecessary to ad-
dress the Employer's other exceptions and to pass on its remaining objec-
tions No exceptions were filed with respect to the heanng officer's rec-
ommendations to overrule the Petitioner's objections
631
nonunion employees at its Shrewsbury, Massachu-
setts terminal involved herein. ' -
The Employer's Objection - II states' -
The Union brought pressure upon the North-
ern New England Trust to terminate the vision
and dental portion of the Employer's insurance
program for its non-Union employees which
-included •' the 'voters in this election. The
Union's effort was designed to disqualify those
drivers from such insurance because of their
non-Union status and _to present the Union as
the only source of comparable insurance cov-
erage. -
The hearing officer found, as supported by the
record, that, approximately a week before the- elec-
tion, Union Business Agent Foley became aware
that- the unit employees were receiving the. dental
and vision insurance benefits. Foley then proceeded
to investigate to ascertain if the Employer's partici-
pation in this trust - fund -as it 'pertained to its
Shrewsbury terminal employees was- legal. After
some investigation, Foley told employee Butch
Flynn, a few days before the election, that the
Shrewsbury terminal employees'were illegally cov-_
ered under the trust fund. Foley' also reported this
matter to various union officials, including his su-
perior-, Teamsters International Vice President
McCarthy. Contrary to Gibbons' testimony, Foley
testified that he believed that an employer partici-
pating in the fund had to be a party to a collective-
bargaining agreement specifically covering the unit
employees before insurance benefits, could be ex-
tended to them.
The hearing officer found that Foley's investiga-
tion as to the legality of the Employer's participa-
tion in the insurance fund did not interfere with or
coerce employees in the exercise of a free choice in
deciding whether or not they desire union repre-
sentation. On this basis, the hearing officer recom-
mended that the Employer's Objection 11 be over-
ruled. In its exceptions to the hearing officer's rec-
ommendation, the Employer contends that the
hearing officer erred when she failed to find
Foley's conduct constituted an implied threat to
employees that they would lose their current insur-
ance coverage unless they chose union representa-
tion. We agree.
We find that Foley's statement to employee
Flynn is coercive and reasonably tended to inter-
fere with the election. The statement is objection-
able regardless of whether the trust fund coverage
for the unit employees is in fact illegal ; whether
Foley, in another context, otherwise had a right as
a union representative to activate an investigation
of the Employer's participation in the fund; and
275 NLRB No. 89
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether any action was taken by the trust fund to
terminate such benefits at any time.
In light of Foley's actions, we find that his state-
ment is comparable to, the employer threats found
in Sure-Tan.3 In Sure-Tan, the Board adopted the
administrative law judge's findings and held that
the employer. had illegally threatened its employ-
ees-who were undocumented aliens-when it
asked them if they had immigration papers or
'green cards."4 The Board found that the employ-
er's inquiry conveyed, a thinly. veiled threat to-
notify the Immigration Service because they had
supported the union.' The employer's inquiry in
Sure-Tan occurred shortly after the union had won
a representation election ' among these employees.
In Sure-Tan, it made no difference that the employ--
ees involved-were undocumented aliens and, in a
different - context, the employer's inquiry might
have been-proper.,
What appears critical in Sure-Tan is the timing of
the employer's remarks in relation to influencing
union support. That same factor ' is present in the
instant case. Foley's statement to Flynn admittedly
was made a few days before the scheduled elec-
tion. The record reveals that Flynn, in turn, re-
layed Foley's statement to at least one other em-
ployee, Norman Lamothe. Lamothe testified that,
prior to the election, he discussed with several
other employees the Union's opinion that: they
3 Sure=Tan, Inc, 234 NLRB 1187, 1190-1191 (1978), enfd in relevant
part, sub nom. NLRB v Sure-Tan, Inc, 672 F 2d 592 (7th Cir 1982), affd
in part , revd in part, and remanded sub nom Sure-Tan, Inc. Y NLRB,
104 S.Ct. 2803 (1984)
4 Ibid
were illegally covered under the trust fund. Thus,
it was inevitable for these employees to infer that
there was only one sure way to keep these insur-
ance benefits-vote for union representation.
For the reasons above, and noting the closeness
of the election, 5 we find, contrary to the, hearing
officer, that the conduct of Union Business Agent
Foley warrants setting aside the election and di-
recting a second election in the event that the re-
vised tally of ballots, which includes the ballots of
Hulse and Richard, shows that the Union has re-
ceived a majority of the valid ballots cast.
DIRECTION
IT IS DIRECTED that the Regional Director,
within 10 days of the date of this Decision and Di-
rection, open and count the ballots of John Hulse
and Robert Richard, prepare a revised tally of bal-
lots, and have it served on the parties. In the event
that the revised tally of ballots shows that the Peti-
tioner' has not received a majority of the valid bal-
lots cast, the Regional Director shall issue a certifi-
cation of results pursuant to the Board's Rules and
Regulations. In the event that the revised tally of
ballots shows that the Petitioner, has received a ma=
jority of the valid ballots cast, the following will be
applicable.
[Direction of second election omitted from publi-
cation.] .
IT IS 'FURTHER DIRECTED that the case is ' re-
manded to the Regional Director for Region I for
further processing consistent with this decision.
5 Rexall Corp, 272 NLRB 316 (1984)