Montgomery Ward & Co., Inc.

National Labor Relations Board - Board DecisionsAug 19, 1975

219 N.L.R.B. 1196 (N.L.R.B. 1975)

1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co., Incorporated and Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , Local 767, Petitioner. Case 16-RC-6738 August 19, 1975 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election approved on October 8, 1974, an election by secret ballot was conducted under the di- rection and supervision of the Regional Director for Region 16 on October 25, 1974, among certain em- ployees of the Employer. At the conclusion of the election the parties were served with a copy of the tally of ballots which showed that, of the approxi- mately 360 eligible voters, 336 valid votes were cast of which 89 were cast in favor of, and 240 were cast against, the Petitioner. There were seven challenged ballots which were insufficient in number to affect the results of the election. There were no void ballots. Thereafter, the Petitioner filed timely objections to 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 inves- tigation and on January 30, 1975, issued his Report on Objections and Notice of Hearing in which he concluded that the issues raised in the Petitioner's objections could best be resolved at a hearing.' On March 4, 5, and 20, 1975, a hearing was held before Hearing Officer Billy M. Gibson of the National La- bor Relations Board. On May 15, 1975, the Hearing Officer issued his Report on Objections in which he sustained the Petitioner's Objections 8 and 9 and part of its Objections 1, 2, 3, and 10.2 Thereafter, the Em- ployer filed timely exceptions to the Hearing Officer's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the basis of the entire record in the case, the National Labor Relations Board makes the following findings of fact: ' The Regional Director approved the Petitioner 's request to withdraw its Ob)ections 6 and 7. In the absence of any exceptions thereto , we adopt pro forma the Hear- ing Officer's recommendations to overrule the remaining portions of these objections and all of Objections 4 and 5 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the fol- lowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Included: all regular full-time and part-time em- ployees employed by the Employer in its loca- tion in Grand Prairie, Texas. Excluded: all con- fidential secretaries and all guards and supervisors as defined in the Act. Objection. 1, 2, 3, and 10: The pertinent portions of these objections allege in substance that the Employ- er threatened employees with a wage decrease should the Petitioner win the election. The evidence estab- lished that, as part of the Employer's election cam- paign, Muir, the Employer's regional employee rela- tions manager and legal representative, conducted approximately 45 meetings with separate groups of the Employer's employees. At various of these meet- ings employees asked Muir whether, in the event Pe- titioner won the election, the employees at the Employer's administrative service center, which is the subject 4f the instant proceeding, would "go un- der" any of the existing contracts Petitioner had with the Employer covering the Employer's three Ft. Worth stores. These contracts provided for lower wage scales than the administrative service center employees were receiving. Muir responded that, his- torically, newly organized stores whose employees had selected the Teamsters as their bargaining agent "fell under" existing collective-bargaining contracts negotiated nationally by the Employer and the Teamsters for all stores represented by locals of that union. In response to a further remark by an employ- ee that the existing national contracts did not cover some of the job classifications at the administrative service center, Muir stated that, "I don't know what happens here because we don't have an administra- tive service center under contract anywhere." The Hearing Officer found that the above state- ments by Muir constituted veiled threats that wages would be lowered if Petitioner won the election. He further found that the Employer's "consistent, con- tinuous campaign" 3 was deliberately calculated to 3 This apparently relates to a movie shown to employees prior to the time the petition was filed stressing the wage differential between the organized stores in Ft . Worth and the administrative service center, the wages of the latter being higheit than the wages at the former. 219 NLRB No. 182 MONTGOMERY WARD & CO., INC. give employees the false impression that wages would be lowered. We disagree. The record establishes that for approximately 20 years the Employer has had a national collective-bar- gaining relationship with the International Teamsters Union and its designated locals, hereinafter collec- tively called Teamsters. All contracts for all stores whose employees are represented by the Teamsters are negotiated in Chicago approximately every 3 years. There is no local bargaining. For at least the past 9 years, the terms of such national contracts have been automatically applied to all of the Employer's stores whose employees have selected the Teamsters as their bargaining agent. The record fur- ther indicates that approximately 90 percent of the employees at the administrative service center had been previously employed at one of the Employer's three Ft. Worth stores, where the Petitioner repre- sented the employees under a nationally negotiated contract. In view of the above circumstances, we find that Muir's statement concerning the application of ex- isting contracts to newly represented stores amount- ed to a truthful representation of the Employer's past and present bargaining relationship with the Team- sters, and further that most of the unit employees had previously worked at represented stores and were aware of the Employer's and Teamsters bar- gaining practices. Consequently, we find no basis for concluding that this statement contained any threat, veiled or explicit, that the Employer would lower wages if the Union won the election. Likewise, we find no reason to read a threat of reprisal into Muir's statement that he did not know what would happen with wage classifications at the administrative service center should Petitioner win the election since, as he explained at the time, he had no basis for knowing that, because the Teamsters did not represent any employees at any of the Employer's administrative service centers. Based on the foregoing, we find that Muir's state- ments did not contain any veiled threats as alleged in the Petitioner's Objections 1, 2, 3, and 10 and, there- fore, we find those objections to be without merit and shall overrule them. Objection 8: This objection alleges that the Em- ployer engaged in unlawful coercion by transferring employees Hatley and Wyatt to more difficult jobs in retaliation for their union activities. The evidence es- tablishes that Hatley and Wyatt work in the Employer's collection department. Both Wyatt and tter is one of the Employer's highest paid employees-were openly active in the Union's organizational drive. In September 1974, as a result of an employee's illness, Hatley was transferred from 1197 the "H" cycle to the allegedly more demanding "I-J" cycle section. On the same day, Wyatt was trans- ferred to a different "tray" within the section where she had been working, to replace an employee who had been discharged .4 Both transfers were made by the employees' immediate supervisors without notifi- cation to the credit service center manager,5 and did not result in any change of pay, working hours, or other terms and conditions of employment for Hat- ley or Wyatt. The Hearing Officer concluded that the above transfers were not common, did not make sound business sense, and were made to retaliate against Hatley's and Wyatt's union activities. The Employer excepted to these conclusions as being contrary to the law and the record evidence. We find merit in the Employer's contentions. Contrary to the Hearing Officer, the record estab- lishes that the transfers of Hatley and Wyatt were not uncommon, being but 2 of 13 transfers made in the collection department within the short period of time material herein. In addition, Hatley's and Wyatt's transfers, which were made in the normal course of business as a result of an illness and a law- ful discharge, resulted in higher performance achievements for their respective sections. Indeed, Hatley received two free dinners for helping her sec- tion move from one of the poorest to the highest in performance, and Wyatt, in a relatively short time, raised her new "tray" to the required production standard. In such circumstances, we are unable to find, as did the Hearing Officer, that their transfers did not make sound business sense, or that they were made for any reason other than business related ones. There is no evidence which establishes that the transfers were made in retaliation for Hatley's or Wyatt's union activities or in any other way were linked to such activities .6 Accordingly, we find that There is no allegation that this discharge was discriminatory or unlaw- fully motiviated or in any way related to Wyatt's transfer. S In August , prior to the filing of the petition, the credit service center manager , Winchester, conferred separately with Hatley and Wyatt, repri- manding them for disruptive conduct and for trying to get their supervisors fired . The record does not establish any connection between the August reprimands and the transfers of Hatley or Wyatt in September. The Hearing Officer relied on testimony that , prior to the filing of the petition , Winchester told Wyatt that she was a union ringleader and should have been terminated . The Employer excepted to the Hearing Officer's reli- ance on this testimony, which concerned events occurring outside the crit- ical period , as the only means to link Wyatt's or Hatley's transfer to their union activities. In agreement with the Employer , we find that such testimo- ny does not establish any such link or unlawful motivation for the transfers. Local Lodge No 1424, International Association of Machinists v. N.L. R. B., 362 U.S. 411 (1960). Nor are we persuaded by the testimony, relied on by the Hearing Officer, that in October 1974 Smith , the Employer's collection manager, told employee Wood that Hatley had been " influencing people the wrong way." Such testimony is at most ambiguous and does not in any way link Hatley 's transfer with her union activities . As indicated above, the overwhelming weight of the evidence supports the Employer 's assertion that Continued 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Petitioner's Objection 8 is without merit and we shall overrule it. Objection 9: In support of this objection, the Peti- tioner presented two witnesses, Walker and Sham- baugh, who testified that on October 1 Group Super- visor Rivers, while seated at his desk, stated loudly for his whole section to hear that there had been a union meeting the night before and that "they" knew who attended. Walker works in Rivers' section. Shambaugh works in an adjacent section separated from Rivers' section by a 6-foot glass and plastic par- tition. The Employer presented five witnesses, four of whom are employees working in Rivers' section who testified that they did not hear Rivers make any such statement and Rivers who denied the incident. The Hearing Officer credited Walker and Sham- baugh and specifically discredited Rivers' testimony because employee Strawn, one of the Employer's wit- nesses, had testified that Rivers had made a similar statement to her and another employee at an unspec- ified time prior to the filing of the petition at a meet- ing held off company property. The Employer ex- cepted to the Hearing Officer's findings contending that the Hearing Officer's credibility resolutions were erroneous, that Rivers did not in fact make the al- leged statement, and that, even assuming Rivers made the statement, only 2 of the Employer's 360 employees testified that they heard it and therefore the incident was isolated and its effect de minimis at most. We agree with the Employer's contention that this incident was too trivial in the circumstances here to have had any significant impact on the election. the transfers were effected in the normal course of business for valid busi- ness reasons. Thus, notwithstanding the testimony of Walker and Shambaugh that Rivers made the statement attribut- ed to him, we note that no other employees testified that they heard the statement, even though they pur- portedly were in a position to have heard it, and that there was no evidence adduced that the statement was disseminated to any other of the Employer's 360 employees in the administrative service center. In these circumstances, we believe that Rivers' state- ment, assuming it was made, constituted an isolated remark too minimal in substance and scope to have had an impact on the election. Accordingly, we find this incident insufficient, standing alone as the only instance of alleged objectionable conduct on the part of the Employer, to warrant our setting aside the election.' Conclusion Accordingly, upon the entire record and for the aforementioned reasons , we find the Petitioner's Ob- jections 1, 2, 3, 8, 9, and 10 are without merit and we shall therefore certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 767, and that said labor organization is not the exclusive representative of all the employees in the unit herein involved within the meaning of Section 9(a) of the National Labor Rela- tions Act, as amended. r While Chairman Murphy views the Hearing Officer's credibility resolu- 'Ions as somewhat dubious, she nevertheless finds it unnecessary to reverse them in view of the result reached by the dismissal of the Petitioner 's Objec- tion 9.