Gross School Bus Service, Inc.

National Labor Relations Board - Unpublished Board Decisions

Sep 14, 2010

04-RC-021631 (N.L.R.B. Sep. 14, 2010)

NOT INCLUDED LBP
IN BOUND VOLUMES Pottstown, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
GROSS SCHOOL BUS SERVICE, INC.
Employer
and Case 4-RC-21631
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS LOCAL 384
Petitioner
and
TEAM UNITED FRONT
Union Involved
DECISION AND CERTIFICATION OF REPRESENTATIVE
The National Labor Relations Board, by a three-member
panel, has considered objections to an election held
January 22, 2010, and the hearing officer's report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 65 for Teamsters Local 384, 52 for
Team United Front, 2 against the participating labor
organizations (neither), and 1 challenged ballot, an
insufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief, and adopts the hearing officer's
2findings' and recommendations , and finds that a
certification of representative should be issued.
The Employer's Objections 1, 2, and 6 allege as
objectionable that members of an in-plant organizing
committee (IPOC) recruited by the Petitioner engaged in
voting-line conversations under Milchem, Inc., 170 NLRB 362
(1968), and that IPOC members gathered and engaged in
animated, prounion conversation with one another outside
of, and at some undetermined distance away from, the
trailer where the polls were located. We agree with the
hearing officer's recommendations to overrule these
objections. I
For the reasons given by the hearing officer, we agree
with her finding that members of the IPOC were not agents
1 The Employer has implicitly excepted to some of the
hearing officer's credibility findings. The Board's
established policy is not to overrule a hearing officer's
credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are
incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957).
We find no basis for reversing the findings.
2 In the absence of exceptions, we adopt pro forma the
hearing officer's recommendation to overrule the Employer's
objection 4, alleging that the Board agent failed to
monitor and prevent improper conduct, and Objection 5,
alleging that an Organizing Committee member promised to
waive union dues for employees who joined Local 384 before
the election.
2
of the Petitioner under applicable Board precedent. See,
e.g., Cornell Forge Co., 339 NLRB 733 (2003). We also
agree with her finding that the IPOC members' conduct was
3
not objectionable .
Because this case arises within the jurisdiction of
the United States Court of Appeals for the Third Circuit,
we also consider NLRB v. L & J Equipment Co., Inc., 745
F.2d 224 (3d Cir. 1984), which set out a four-part test to
determine whether members of an organizing committee are
4
union agents . We need not address steps one, two, or four
3 In recommending that Objections 1, 2, and 6 be overruled,
the hearing officer evaluated the IPOC members' conduct
under the third-party standard set forth in Westwood
Horizons Hotel, 270 NLRB 802, 803 (1984) - namely, "whether
the misconduct was so aggravated as to create a general
atmosphere of fear and reprisal rendering a free election
impossible." The correct standard for evaluating
objectionable electioneering by nonparties, however, is
"'whether the conduct at issue so substantially impaired
the employees' exercise of free choice as to require that
the election be set aside."' TYson Fresh Meats, Inc., 343
NLRB 1335, 1335 fn. 4 (2004) (quoting Hollingsworth Mgmt.
Service, 342 NLRB 556, 558 (2004)). Applying the correct
standard, we find no objectionable conduct.
4 "1. The [committee] as a whole must possess actual or
apparent authority to act on behalf of the union in
assisting the union in the organizational drive or election
campaign;
2. The individual member of the [committee] whose conduct
is at issue must be sufficiently active in the [committee]
that he or she had actual or apparent authority to act on
behalf of the [committee].
3. The acts of the [committee] member must fall within
the scope of his or her role as a member of the
[committee].
3
because we find that the third condition for finding agency
is not satisfied in this case. Step three asks whether the
acts of the committee member "[fell] within the scope of
his or her role as a member" of the organizing committee.
Id. at 234.
As to the alleged Milchem conduct, most of it
consisted of conversation that did not fall within the
scope of the IPOC members' role as IPOC members. They
simply chatted with coworkers about topics like cars and
sports. So occupied, they were, and would have appeared to
others to be, employees waiting in line to vote with other
employees and passing the time while they waited.
One IPOC member, Linda Garner, did say to two friends
waiting in line with her to vote that "the union's got to
win here." Assuming that statement would meet step three
of the L & J Equipment test, and further assuming that the
other steps are also met, we would still uphold the
election. The rule established in Milchem, above, applies
only to "sustained conversations." 170 NLRB at 362. The
Board made clear that application of the rule is to be
"informed by a sense of realism," and that its decision did
4. The union must not have taken adequate steps to
repudiate acts which, although unauthorized, fall within
the apparent authority of [committee] members."
Id. at 234 (footnotes omitted).
4
not suggest "that any chance, isolated, innocuous comment
or inquiry . . . will necessarily void the election." Id.
at 363. Thus, even if Garner's comment fell "within the
scope of . . . her role as a member of the [committee],"
the remark to two coworkers was no more than an isolated
comment insufficient to void the election.
Finally, looking at the gathering of the IPOC members
away from the polls, we would find it unobjectionable even
assuming the IPOC members' agency status. The credited
evidence establishes that the gathered IPOC members were
not engaged in electioneering. They were casually speaking
to one another.
In sum, we would reach the same result here, even
applying the Third Circuit's test.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for the International Brotherhood of Teamsters
Local 384, and that it is the exclusive collective-
bargaining representative of the employees in the following
appropriate unit:
All full-time and regular part-time bus
drivers and bus aides employed by the
Employer at its 1801 Pottstown Pike,
Pottstown, Pennsylvania facility but
excluding all dispatchers, managerial
employees, guards and supervisors as defined
in the Act, and all other employees.
5
Dated, Washington, D.C., September 14, 2010.
Wilma B. Liebman, Chairman
Craig Becker, Member
Mark Gaston Pearce, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD