Jobbers Warehouse Service, Inc.

National Labor Relations Board - Board Decisions

May 29, 1974

210 N.L.R.B. 1038 (N.L.R.B. 1974)

1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jobbers Warehouse Service , Inc., Employer-Petition-
er and General Teamsters Union, Local 406,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Ind., Petitioner. Cases 7-RC-1 1727 and
7-RM-951
May 29, 1974
DECISION, ORDER, AND DIRECTION
OF THIRD ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret ballot election was
conducted on May 9, 1973, among the employees in
the stipulated unit described below. Thereafter, the
Union-Petitioner filed timely objections to conduct
affecting the results of the election.
Pursuant to Section 102.69 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Regional Director conducted an
investigation. On July 16, 1973, the Regional Direc-
tor issued his Report on Objections in which he
found that the Union-Petitioner's objections in
substantial part paralleled the allegations set forth in
the complaint which he had simultaneously issued in
Case 7-CA-10402. In accordance with Section
102.33 of the Board's Rules, the Regional Director
ordered that Cases 7-RC-11727 and 7-RM-951 be
consolidated with Case 7-CA-10402 and directed a
consolidated hearing to be conducted before an
Administrative Law Judge pursuant to Section
102.69 of the Board's Rules and Regulations.
Pursuant to a Stipulation to Set Aside Election and
Agreement for Rerun Election in Cases 7-RC-11727
and 7-RM-951 executed by the parties on Septem-
ber 19, 1973,1 and approved by the Regional
Director on September 25, 1973, a second secret
ballot election was conducted on November 21,
1973, among the employees in the stipulated unit
described below. The tally of ballots furnished the
parties showed that of approximately 29 eligible
voters, 29 cast ballots, of which 20 were for and 7
against the Union-Petitioner. There were two chal-
lenged ballots which were insufficient to affect the
results of the election. Thereafter, the Employer-
Petitioner filed timely objections to conduct affecting
the results of the election.
Pursuant to Section 102.69 of the Board's Rules
and Regulations, the Regional Director conducted
an investigation and issued and duly served on the
parties on December 6, 1973, his notice of hearing on
objections in which he directed that a hearing be held
to resolve the substantial and material factual issues
raised by the objections. The Regional Director
further ordered that the Hearing Officer designated
to conduct the hearing prepare and cause to be
served on the parties a report containing resolutions
of questions of credibility, findings of fact, and
recommendations to the Board.
Pursuant to the Regional Director's order, a
hearing was held before Hearing Officer James P.
Lewis on December 17 and 18, 1973. All parties
participated and were given full opportunity to
examine and cross-examine witnesses and to intro-
duce evidence bearing on the issues. On February 1,
1974, the Hearing Officer issued and duly served on
the parties his Hearing Officer's Report and Recom-
mendations on Objections to Election in which he
recommended that Employer-Petitioner's Objections
1, 4, and 8 be sustained and that Objections 2, 3, 5, 6,
and 7 be overruled. The Union-Petitioner filed timely
exceptions and the Employer-Petitioner filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case , the Board
finds:
1. The Employer-Petitioner is engaged in com-
merce within the meaning of the Act, and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
2. The Union-Petitioner is a labor organization
claiming to represent certain employees of the
Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer-Petitioner 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 the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(c) of the Act:
All full-time and regular part-time countermen,
warehousemen and drivers employed by the
Employer at its facility located at 355 Sheldon
Avenue, S.E., Grand Rapids, Michigan; but
excluding sales employees, office clerical employ-
ees, guards and supervisors as defined in the Act
and all other employees.
5. The Board has considered the Hearing Offi-
i The parties also executed at that time an informal settlement Director on September 24, 1973
agreement in Case 7-CA-10402 which was approved by the Regional
210 NLRB No. 151
JOBBERS WAREHOUSE SERVICE
cer's Report and Recommendations on Objections to
Election and the exceptions and briefs, and hereby
adopts the Hearing Officer's findings and recommen-
dations.2
The Hearing Officer found that less than 36 hours
before the election on November 21, 1973, Union
Representative Roger Groendyk told a group of
employees that the Employer's president, E. Bruce
Cheadle, was not telling them the truth when he said
he was innocent of unfair labor practices, and
offered as proof the complaint and answer in Case
7-CA-10402. The parties had entered into a settle-
ment agreement in that case on September 19.3
We agree with the Hearing Officer's finding that
Groendyk seriously misrepresented to the employees
the substance of these documents when he strongly
intimated that the answer's admission to the allega-
tions contained in a number of the paragraphs of the
complaint, as well as the fact that the answer was
signed by Cheadle instead of his attorney, constitut-
ed an admission of guilt by the Employer of the
substantive unfair labor practice allegations in the
complaint rather than merely the technical matters,
such as jurisdiction, which were covered in those
paragraphs. In our view Groendyk's actions substan-
tially mischaracterized the effects of the disposition
of a Board proceeding and the pleadings filed therein
for partisan election purposes and, therefore, warrant
setting aside the election. Dubie-Clark Incorporated,
209 NLRB No. 21.
In addition, the Employer did not learn of these
misrepresentations until the morning before the
election. In our view, a personal response by Cheadle
would have been necessary, at the very least, in order
for the Employer to have effectively replied to
Groendyk's attempt to impugn Cheadle's integrity
and credibility, which had become a key issue in the
preelection campaign. However, this method of reply
was foreclosed to the Employer by our rule in
Peerless Plywood Company, 107 NLRB 427, banning
speeches within 24 hours of the election. We agree,
2 In the absence of exceptions thereto, we adopt pro forma the Hearing
Officer's recommendation that Objections 2, 3, 5, 6, and 7 be overruled
3 The Employer had held employee meetings on and shortly after
September 19 to explain that the settlement of that date was not a
1039
therefore , with the Hearing Officer that Groendyk's
material misrepresentations , which were made at a
time when the Employer could not effectively
respond , require us to set aside the election and order
that a third election be conducted . Modine Manufac-
turing Company, 203 NLRB No. 77; Hollywood
Ceramics Company, Inc., 140 NLRB 221.
We further find that the election herein should be
set aside for the following reason . At the November
19 meeting Groendyk contradicted Cheadle 's protes-
tations of innocence and improperly implied that
Cheadle had admitted guilt of at least some of the
unfair labor practices that had been settled . Groen-
dyk misrepresented the effect of the Employer's
answer in Case 7-CA-10402 when he offered that
document as proof that Cheadle had admitted
committing unfair labor practices . Yet, contrary to
Groendyk' s insinuations , the Board made no finding
of guilt nor was there any admission by Cheadle to
that effect either in the answer or in the settlement
agreement entered into in that case.
ORDER
It is hereby ordered that the election conducted on
November 21, 1973, in Cases 7-RC-11727 and
7-RM-951 be, and it hereby is, set aside.
[Direction of Third Election and Excelsior footnote
omitted from publication.]
MEMBER PENELLO, dissenting:
I dissent . The majority relies primarily on Holly-
wood Ceramics and Dubie-Clark. I dissented in
Dubie-Clark and would reverse Hollywood Ceramics.
In my opinion the Board should return to its early
approach of refusing to determine the truth or falsity
of campaign statements and leave it to the voters to
evaluate election propaganda, except in cases of
deception rising to the level of actual fraud . See, e.g.,
United Aircraft Corporation, Pratt & Whitney Aircraft-
Division, 103 NLRB 102.
concession of wrongdoing On the morning of November 19 it held another
employee meeting at which, as the Hearing Officer found , president
Cheadle again emphasized that the Employer was "only guilty in the sense
of not affording laboratory conditions for the election of May 1973 "