Randall Rents of Indiana

National Labor Relations Board - Board Decisions

Mar 12, 1999

327 N.L.R.B. 867 (N.L.R.B. 1999)

RANDALL RENTS OF INDIANA 867
Randall Rents of Indiana and Randall Industries, a
Single Employer and International Union of Op-
erating Engineers, Local 150, AFL–CIO, Peti-
tioner 1 and Production Workers Union of Chi-
cago and Vicinity, Local 707, N.P.W.U., Peti-
tioner 2. Cases 13–RC–19777, 13–RC–19825, and
13–RC–19828
March 12, 1999
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FOX, LIEBMAN, AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held April 29, 1998, and the hearing officer’s report rec-
ommending disposition of them. The election was con-
ducted pursuant to a Decision and Direction of Election.
The tally of ballots shows 1 for Petitioner 1 (Local 150),
8 for Petitioner 2 (Local 707), and 0 against participating
labor organizations, with 7 challenged ballots.1
The Board has reviewed the record in light of the ex-
ceptions2 and briefs, and, for the reasons set forth below,
has decided to adopt the hearing officer’s findings3 and
recommendations4 only to the extent consistent with this
decision.
We adopt the hearing officer’s recommendation to
overrule Local 150’s Objections 1, 2, 8, 18, 19, and 20.
Contrary to the hearing officer’s recommendation, how-
ever, we also overrule Local 150’s Objections 9 and 10,
and thus we shall certify Local 707.
The hearing officer recommended sustaining Local
150’s Objections 9 and 10 as they related to the Em-
ployer’s promise and grant of additional benefits to em-
ployees during the critical period based on evidence con-
cerning the issuance of a larger than usual bonus to bar-
gaining unit employees at the Employer’s Elmhurst facil-
ity 1 month before the election. In this regard, the hear-
ing officer found that prior to 1998, the Elmhurst em-
ployees received a small cash bonus around Christmas5
and a bonus check in the beginning of the year based on
the Employer’s profitability during the previous year
(profit-based bonuses). The Employer issued profit-
based bonuses if it made a profit in the preceding year.
The last such bonus, prior to the critical period,6 issued in
January 1996 for the 1995 calendar year. The employees
were notified of the amount of their profit-based bonus at
the end of 1995, through a document enclosed in the
Christmas cards that also contained their cash bonus.

1 Subsequent to the election, the Regional Director for Region 13
issued a Report on Challenged Ballots and Objections and Notice of
Hearing, in which he recommended sustaining four of the challenges,
thus rendering the remaining three challenges not determinative.
2 We deny the Employer’s motion to strike Local 150’s exceptions
in their entirety.
3 Local 150 and the Employer have 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 pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Stretch-Tex Co., 118 NLRB 1359, 1361 (1987). We find no
basis for reversing the findings.
4 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to overrule Local 150’s Objections 3, 4, 5, 6, 7,
11, 12, 13, 14, 15, 16, and 17.
5 Typically this cash bonus ranged from $25 to $100.
In mid-March 1998, the Elmhurst employees received
their profit-based bonuses for calendar year 1997. Randy
Truckenbrodt, the Employer’s president, explained that
profit-based bonuses were typically issued to employees
anytime from December 20 of the year that the Employer
made the profit to as late as mid-March of the following
year; he testified that there was an effort to pay the
profit-based bonuses during January of the following
year, but that he could not “swear” that this happened all
the time. He explained that the payment of the bonuses
for the Elmhurst employees was delayed until March
1998 because the Employer started 1997 with a “pretty
significant loss.” Truckenbrodt further testified that the
1998 bonus pool was the largest bonus pool in the Em-
ployer’s history. The three Elmhurst employees who
received bonuses in both 1996 and 1998 received at least
almost twice the amount in 1998 that they received in
1996.7
The hearing officer found that although the Employer
admitted that the 1998 bonus pool was the largest in its
history, it produced no evidence to show that its 1997
profits were the largest in its history, nor did it explain
why it issued substantially larger bonuses to the Elmhurst
employees than they received in 1996. The hearing offi-
cer further found that the Employer failed to adequately
explain why it had to delay the issuance of the bonuses to
the Elmhurst employees until March 1998. The hearing
officer did not credit the Employer’s explanation that the
reason the Elmhurst employees received their bonuses in
March 1998 was that it was more difficult to calculate
the bonuses for the Elmhurst facility because of a finan-
cial loss that facility experienced in the first part of 1997.
The hearing officer noted that the Employer failed to
produce any documents to show that such a loss occurred
or that the recovery from the loss was so substantial that
it justified issuing the large bonuses that the employees
received. Thus, the hearing officer found that the Em-
ployer failed to provide an adequate explanation for de-
laying the issuance of the bonuses to the Elmhurst em-
ployees until March 1998 or for issuing substantially
larger bonuses to them. He, therefore, concluded that the
pending election influenced the Employer in both the
timing and the amount of the bonuses. Accordingly, the
hearing officer recommended sustaining Objections 9
6 The critical period began on November 25, 1997, with the filing of
an election petition by Local 150. Election petitions were also filed by
Local 707 on February 3 and 5, 1998.
7 One such employee received $300 in 1996 and $1200 in 1998;
another such employee received $500 in 1996 and $800 in 1998; and
the other such employee received $200 in 1996 and $700 in 1998.
327 NLRB No. 157
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 868
and 10 solely as they related to the issuance of the bo-
nuses, and thus he recommended setting aside the elec-
tion.
The Employer excepts to the hearing officer’s recom-
mendation to sustain Objections 9 and 10, contending,
inter alia, that the Employer’s issuance of a profit-based
bonus to the Elmhurst bargaining unit employees in mid-
March 1998 neither interfered with the employees’ free
choice to organize nor affected the outcome of the elec-
tion, where the employees voted overwhelmingly in fa-
vor of Local 707.
We find merit in the Employer’s exception. It is well-
established Board law that in an election involving two
competing unions in which one union has won the elec-
tion decisively, the election will not be set aside because
of employer conduct equally affecting both unions.
Showell Poultry Co., 105 NLRB 580 (1953); Nestle Co.,
248 NLRB 732, 741 (1980), enfd. mem. 659 F.2d 252
(D.C. Cir. 1981). For example, in Flat River Glass Co.,
234 NLRB 1307 (1978), the Board declined to set aside
an election in a situation where the employer had main-
tained an invalid no-solicitation rule but there was no
evidence indicating preferential treatment by the em-
ployer between the two participating unions. In that
case, the Board stated:

In Showell Poultry Company, 105 NLRB 580
(1953), the Board overruled an objection to an elec-
tion involving two unions in which the employer
made a putatively coercive speech opposing both un-
ions. The Board explained in Packerland Packing
Company, Inc., 185 NLRB 653 (1970), citing Show-
ell, that where one of two competing unions has won
an election decisively it will not be set aside because
of employer conduct equally affecting both. Cf.
Marvin Neiman, d/b/a Concourse Nursing Home,
230 NLRB 916 (1977). [Id.]

This rule of Showell Poultry applies here, because
even assuming that the Employer engaged in otherwise
objectionable conduct by its issuance of the mid-March
1998 bonuses to Elmhurst employees, there is no evi-
dence that this conduct affected Local 150 any differ-
ently than it did Local 707; rather, the conduct alleged to
be objectionable here equally affected both unions. In
this regard, we have adopted the hearing officer’s rec-
ommendation to overrule Local 150’s Objection 18,
which alleged that the Employer unlawfully dominated
or supported Local 707 to discourage employees’ choice
of Local 150.8
Thus, contrary to the hearing officer’s recommenda-
tion, we shall overrule Local 150’s Objections 9 and 10.
Accordingly, we overrule the hearing officer’s recom-
mendation to set aside the election, and we shall certify
Local 707 as the collective-bargaining representative of
the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Production Workers Union of Chicago
and Vicinity, Local 707, and that it is the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:

All full-time and regular part-time laborers, operators,
mechanics, drivers, yardmen and repairmen employed
by the Employer at its facilities currently located at
6480 Highway 20, Portage, Indiana and 741 South
Route 83, Elmhurst, Illinois; but excluding all office
clerical employees, professional employees, guards and
supervisors as defined in the Act.

8 In so concluding, the hearing officer found, inter alia, that the
Employer did not express an opinion as to whether Local 707 was
better than Local 150.