Patchett's Bus Transportation Co.

National Labor Relations Board - Board Decisions

Jan 5, 1981

253 N.L.R.B. 996 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Educational and Recreational Services, Inc., a
Wholly-Owned Subsidiary of ARA Services,
Inc., d/b/a Patchett's Bus Transportation Com-
pany, a/k/a Livermore Transit and Brother-
hood of Teamsters and Auto Truck Drivers,
Local No. 70, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Petitioner.
Case 32-RC-976
January 5, 1981
DECISION ON REVIEW AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On June 30, 1980, the Acting Regional Director
for Region 32 issued a Supplemental Decision and
Direction of Rerun Election in the above-entitled
proceeding in which he set aside the election held
on May 9, 1980,1 based on (1) the Petitioner's Ob-
jection 6 alleging material misrepresentation as to
dues checkoff, as well as on (2) the Employer's
delay in implementing a wage increase, which con-
duct was uncovered during his investigation of the
objections, and directed that a second election be
held. 2 Thereafter, in accordance with the National
Labor Relations Board Rules and Regulations,
Series 8 as amended, the Employer filed a timely
request for review contending, inter alia, that the
Acting Regional Director departed from Board
precedent in setting aside the election.
By mailgram dated August 27, 1980, the Nation-
al Labor Relations Board granted the Employer's
request for review with respect to the Petitioner's
Objection 6 and the Employer's delay in imple-
menting a wage increase. Chairman Fanning, dis-
senting in part, indicated he would have denied
review as to the Employer's delay in giving the
wage increase.
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.
The Board has considered the entire record in
this case with respect to the issues under review,
including the Petitioner's brief on review, and
makes the following findings:
' Initial tally of ballots showed that of approximately 17 eligible voters
7 cast ballots for and 7 against the Petitioner, and 3 ballots were chal-
Ienged The three challenged ballots were subsequently resolved pursuanlt
to a stipulation by the parties that these three employees were ineligible
to, vote as they were not employed on the eligibility date The tally of
ballots was revised accordingly
The Petitlioner's Objections I through 3 were overruled Although
the Petititiner's Objections 4 and 5 were found to raise substantial and
material issues of fact, the Acting Regional Director did not direct a
hearing as he had set the election aside on the grounds set forth above
253 NLRB No. 140
The Petitioner's Objection 6 alleges that the Em-
ployer interfered with the election by inserting in
the employees' paycheck envelopes, which were
issued immediately prior to the start of the elec-
tion, a document referring to future paycheck de-
ductions for union dues. The document reads:
UNION DUES
Have not been deducted from your paycheck.
It could be different next month . . . If the
union wins.
VOTE NO
And protect your paycheck!
The Acting Regional Director found that the docu-
ment contained substantial misrepresentations in
that it indicated to the employees that, if the Peti-
tioner won the election and negotiated a contract
with a union-security clause, dues would be de-
ducted from their paychecks without their consent.
We disagree.
A fair reading of the above-quoted document
would seem to us to indicate that, if the Petitioner
won the election, union dues could be deducted
from employee paychecks. The document does not
indicate that dues would be automatically with-
drawn from paychecks without employee consent.
The Board has long held that campaign propagan-
da concerning union dues distributed along with
paychecks on election day does not interfere with
the employees' freedom of choice which would
warrant setting aside the election. Moody Nursing
Home, Inc., 251 NLRB 147 (1980); The Mosler Safe
Company, 129 NLRB 747 (1960). The Employer's
propaganda leaflet inserted in the employees' pay
envelope, here, does nothing more than remind the
employees that acquiring union membership neces-
sarily involves monetary considerations, which is
not a misrepresentation but a fact of life. The Wil-
liam Carter Company, Inc., 208 NLRB 1 (1973).
Accordingly, we overrule the Petitioner's Objec-
tion 6.3
Although not specifically alleged in the Petition-
er's objections, the Acting Regional Director's in-
vestigation revealed that during the critical period
between the filing of the petition and the conduct
of the election the Employer delayed giving its em-
ployees a $1-per-hour wage increase. The petition
was filed on February 8, 1980.4 On February 19, a
new contract was executed between the Employer
:' Member I ruesdale would sustain the Petitioner's Objection 6, as he
finds fr the reasons stated by the Acting Regional Director that the
statement included in the employees' pay envelopes by the Employer
substanlially misrepresented the law as it relates to union-dues checkoff
4 All dales hereafter are 198
996
PATCIIE'I"S BUS TRANS()oRTATI()N CO)MPANY
and the city of Livermore which provided money
for a wage rate increase. On February 27, the Peti-
tioner informed the Employer that it had no objec-
tions to the Employer's implementation of this rate
increase. However, the Employer did not do so,
and on April 17 the city inquired as to why it had
not put the increase into effect. In response thereto,
the Employer, by letter of April 23, informed the
Petitioner that it had not implemented the rate in-
crease because of the pending election petition and
asked the Petitioner if it had any objections to its
giving the increase. Thereafter, on May 3, 6 days
before the election, the Employer distributed
checks to its employees at a dinner it hosted, which
provided for retroactive pay of $1 per hour for
each hour worked between February 19 and April
17. By letter of May 5. the Petitioner formally re-
sponded to the Employer's inquiry, by stating that
it had no objections. On these facts, the Acting Re-
gional Director found that the Employer's delay in
implementing the wage increase impaired the em-
ployees' freedom of choice in the election. We do
not agree.
Our review of the record indicates that the Em-
ployer's delay in giving the wage increase does not
warrant setting the election aside. Not only did the
Petitioner not allege such conduct as objectionable,
it contacted the Employer by letter on February
27, shortly after the contract was signed, and again
on May 5, 4 days before the election, to assure the
Employer that it was both "understood and docu-
mented" that the employees would receive a $1 in-
crease and that it had no objection to the imple-
mentation of the increase. Moreover, this corre-
spondence, along with the Employer's letter of
April 23, was either sent to all the employees or
placed on employee bulletin boards. Consequently,
all employees were aware of the contract negotiat-
ed between the Employer and the city, that they
were to receive a $1 rate increase under the new
contract, and that the Employer was uncertain as
to the propriety of granting such an increase but
had sought clearance from the Petitioner prior to
giving the increased wage rate. 5 Thus, with this
I Although the Petitioner did not formally respond to the Employer's
April 23 letter until May 5, 2 days after the increase had behc distributed.
the Employer had asked the Peitioner that, if it had any ohjections to
the in,--ease, would it do so by May 2 liHaing received no reply on that
date, it would have been reasonable to assume that no objections were
background, the timing of the employees' actual re-
ceipt of the wage increase was neither unexpected
nor likely to interfere with employee free choice.
Moreover, the Employer's hesitancy and delay in
this matter is understandable as the contract was
not executed until after the petition was filed and
the Employer had no established past practice of
giving wage increases as it had been in business for
only 18 months and had not previously granted
any wage increases. Furthermore. the Employer's
sudden interest on April 23 in giving the increase
after making no effort to do so since late February
was in response to the city's rather pointed inquiry
as to why it had failed to put the increase into
effect. Thus, as a result of the city's action, the
Employer checked with the Petitioner once again
as to whether it had any objections and then dis-
tributed the increase.
Under all the circumstances, we find that the
Employer's conduct in delaying the implementation
of a wage increase does not constitute election in-
terference. See, e.g., Northern 7ilecom. Inc., 233
NLRB 1104 (1977); The Singer Company. FIride
Division, 199 NLRB 1195 (1972).
However, inasmuch as the Acting Regional Di-
rector found that the Petitioner's Objections 4 and
5 raise substantial and material issues of fact which
can only be resolved by a hearing, we shall remand
this proceeding to the Regional Director for fur-
ther appropriate action with respect to those objec-
tions. 6
ORDER
It is hereby ordered that Case 32-RC-976 be,
and it hereby is, remanded to the Regional Direc-
tor for Region 32 for the purpose of taking further
appropriate action with respect to the Petitioner's
Objections 4 and 5.
forthcmlnling a nd thereftre the Employer inl ahead With Its plan t,
distribute the increase Indeed, as noted above, n Nlay 5 the Ietitioner
formally replied to the Employer's April 23 letter. staling that It had i,
objections
i As indiciated, Chairman Fanning ould find that the Emplo)er',
delay in implementing the Wage increase .arrints settnlig aside Ihe clec
tion hrihelrea Membher Trusdale would stlstain thePetli,ncr' ()hiellOl
6. Chairman Fanning and Member Truesdale join In the remand oI tihi
proceeding wi the Regional Director, however. because both grounds
relied on hb the Acting Regional Direclor i seting aide he lection
have heen overruled h a mallority of the Bo.ard panel herein