NOTICE: This opinion is subject to formal revision
before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Towne Bus LLC and Local 854, International Brotherhood of Teamsters, Petitioner
Towne Bus LLC and
Amalgamated Transit Union Local 1181–1061, AFL–CIO, Petitioner. Cases
29–RC–11389 and 29–RC–11390
September 12, 2007
DECISION AND DIRECTION OF
SECOND ELECTION
By Chairman Battista and Members
Kirsanow and Walsh
The National Labor Relations Board, by a three-member panel, has considered objections to an election held December 8, 2006, and the hearing officer’s report recommending disposition of them, pertinent portions of which are attached. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 5 votes for Petitioner Amalgamated Transit Union Local 1181–1061, 36 votes for Petitioner Local 854, International Brotherhood of Teamsters, and 80 votes against the Petitioners, with 6 challenged ballots, an insufficient number to affect the results.
The Board has reviewed the record in light of the exceptions and briefs, has adopted the hearing officer’s findings and recommendations[1] and finds that the election must be set aside and a new election held.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the employees in the unit found appropriate, whenever the Regional Director deems appropriate. The Regional Director shall direct and supervise the election, subject to the Board’s Rules and Regulations. Eligible to vote are those employed during the payroll period ending immediately before the date of the Notice of Second Election, including employees who did not work during the period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike that began less than 12 months before the date of the election directed herein and who retained their employee status during the eligibility period and their replacements. Those in the military services may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the payroll period, striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the date of the election directed herein, and employees engaged in an economic strike that began more than 12 months before the date of the election directed herein and who have been permanently replaced. Those eligible shall vote whether they desire to be represented for collective bargaining by Amalgamated Transit Union Local 1181–1061, or by Local 854, International Brotherhood of Teamsters, or by neither.
To ensure that all eligible voters have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses that may be used to communicate with them. Excelsior
Underwear, 156 NLRB 1236 (1966); NLRB
v. Wyman-Gordon Co., 394
Dated,
Peter N. Kirsanow, Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
Chairman Battista, dissenting.
The objecting party has not met its burden of showing that the manual represented a change in terms of employment. In order to demonstrate a change, one must show the prior terms and then compare these to the assertedly new terms. The manual sets forth the assertedly new terms, but the record fails to disclose the prior terms. Thus, there has been no showing of a change.1
My colleagues acknowledge the hearing officer’s explicit statement that “there is no evidence that the employee manual contained any changed terms or conditions of employment, or promised any new benefits”. They then note that the hearing officer found that the manual contained a “promise of future benefits.” The prior sentence does not support the latter one. In short, the evidence does not support the finding. My colleagues refer to an increase in employer contributions to employee health insurance (slated for January 1, 2007) and an increase in pay (slated for June 30, 2007). However, there is no indication that these increases were not previously scheduled to occur on those dates. This would explain the hearing officer’s explicit statement that there is no evidence of change. It is, of course, the Objecting Party’s burden to show a change.
Dated,
_____________________________________
Robert J. Battista, Chairman
National Labor Relations Board
hearing officer’s report and Recommendations on
objections
. . . .
Objections No. 2, 3 and 4:
In these objections, Petitioner 1181 essentially contended
that during the critical period, the Employer promised and granted benefits to
its unit employees in order to induce them to vote against Petitioner 1181. As
an offer of proof Petitioner 1181 provided the 2004–2008 collective-bargaining
agreement between Local 1181 and WE Transport, which purportedly has the same
family owner as the Employer herein,7
and a document entitled, “Waverly Avenue Employee Manual.” At the hearing,
Petitioner 1181 again offered these documents to support its objections. The Employer denied that it promised or
granted any benefits during the critical period. The Regional Director, in his report,
directed that Petitioner 1181’s Objection Nos. 2, 3 and 4 be set for hearing regarding
only the timing of the release of the
employee manual, whether the manual had been previously distributed, and
whether it contained any promised changes in terms and conditions of employment.
Weitzel, the only witness at the hearing, testified
that she received her first and only copy of the “Waverly Avenue Employee
Manual” prior to the election. (Tr.
20–21; 32; P Ex 3.) Weitzel had to go to
the office to sign that she had received the manual, and it was handed to
her. She had never before received a
copy of this manual, or one like it. At
the time she was given the manual, no representations were made to her
regarding its contents. Finally, she
testified that her terms and conditions of employment had not changed prior to
or subsequent to the election, she was told by management that they would not
change, and her terms and conditions of employment have mirrored those found in
Petitioner 1181’s collective-bargaining agreement with WE Transport since 2002,8 when she transferred to the Waverly Avenue
location. Coincidentally or not, the
cover of the employee manual states “July 1, 2004–June 30, 2008”, identical to
the effective dates of Petitioner 1181’s collective-bargaining agreement with
WE Transport. (Tr. 11–15; 21–22; 30;
32–33; P Ex 2 and 3.) Weitzel read the
employee manual after she received it and confirmed that it accurately
represented her terms and conditions of employment, and there was nothing in it
that was new or different. (Tr. 35) The Employer failed to present any witnesses
to explain the timing of the release of the employee manual.
It is not objectionable for an Employer to choose to
provide organized and non-organized employees with identical or similar wages
and benefits, as long as it does not make changes to those terms and conditions
of employment during the critical period.
See: Allegany Aggregates, Inc., 327 NLRB 658, 659 (1999), where announcement of show up pay
policy during the critical period was not objectionable because it was not a
new benefit. Here, there is no evidence
that the employee manual contained any changed terms or conditions of
employment, or promised any new benefits.
In fact, Weitzel testified that she read the manual, and it was
accurate, and management told her that there were not going to be any changes,
and to her knowledge, there were none. However, the only evidence in the record
regarding the release of the employee manual is that it occurred during the
critical period, and it had not been previously distributed. The Employer was given full notice and
opportunity to explain the timing of the release of the document, as set forth
in the Regional Director’s Report. In
addition, the Hearing Officer stated on the record that evidence regarding the
timing of the release of the document was the Employer’s burden and had not
been addressed. The Employer declined to
present evidence in this regard. (Tr.
38–40)
Documents such as the employee manual, handed out
during the critical period, have been found objectionable when they contain
changes in terms and conditions of employment.
See Southgate Village, Inc.,
319 NLRB 916, 925 (1995), where the Board found that the timing of the
distribution of a new employee manual four days before the election, announcing
changes in benefits, was timed by the Employer “in order to heighten the impact
of those benefits and thereby influence the outcome of the election.” See also Sun Mart Foods, 341 NLRB 161,
162 (2004), where the Board “will infer that an announcement or grant of
benefits during the critical period is objectionable; however, the employer may
rebut the inference by establishing an explanation other than the pending
election for the timing of the announcement or the bestowal of the benefit.”
(citing Star, Inc., 337
NLRB 962, 963 (2002)). Here, the
Employer distributed a manual during the critical period that not only mirrors
its collective-bargaining agreement at its organized facility, highlighting, in
effect, that no union is necessary to obtain the same benefits, but most
importantly, also contains the same term as the collective-bargaining agreement.
While the Employer is within its rights to mirror an
organized facilities’ wages and benefits, and compare the benefits received in
the organized facility versus the nonunion facility, here, it also included a
term for the continuation of those mirrored benefits for eighteen months after
the election, the same term as the collective-bargaining agreement. See TCI Cablevision of Washington, 329 NLRB
700 (1999), citing Walgreen Co., 203 NLRB 177, 181 (1973)
(where the employer compared the wages and benefits received in its nonunion
facilities with those received in its organized facilities, which the Board
found was simply a recitation of “historical fact.”). Providing a term for the receipt of identical
benefits that extends well into the future, in my view, amounts to a promise
that benefits over the next eighteen months will continue to be identical to
the organized facilities’ benefits, and increase as those at the organized
facilities increase. In this regard, I find that both TCI Cablevision of Washington, supra, and Viacom Cablevision, 267 NLRB 1141 (1983), which was relied on by
the Board in TCI Cablevision of Washington,
are distinguishable from the instant case.
The Board found that the employer in Viacom
Cablevision “disclaimed any promise of what the employees might receive in
the future.” TCI Cablevision of Washington, supra at 700. Here, the Employer, by telling the employees
on the face of the document that their benefits will continue for the next year
and a half to mirror those found it its collective-bargaining agreement with
Petitioner 1181 at another facility, is making a promise to employees about
future benefits.
Because the Employer’s manual contained a promise of
future benefits, the timing of the release of the employee manual creates an
inference that the Employer was trying to influence employee voting. The Employer failed to rebut this
inference. I also note that the evidence
shows that the manual had never before been distributed, which I find further
supports the inference. Absent any
evidence that the manual had previously been distributed to employees with a
four-year long term, or that there was some compelling reason to distribute it
during the critical period, the inference that the Employer was trying to
influence the outcome of the election by the distribution of the manual remains
unchallenged.
Finally, the Board has found that the distribution
of an employee manual during an organizational campaign is coercive and violates
Section 8(a)(1) of the Act. Dentech Corp.,
294 NLRB 924, 965 (1989) (where the Board adopted the administrative law
judge’s findings that an “employee handbook was issued to employees after the
Company knew of union organizational activity among its employees, and that it
was issued to discourage such union organizational activity.”) Similarly, I find that the unrebutted
inference herein that the Employer timed the release of the employee manual to
discourage employees from voting for the union, is objectionable conduct sufficient
to overturn an election.
Accordingly, I recommend that the portions of
Objection Nos. 2, 3 and 4, concerning the unexplained and potentially
vote-influencing timing of the first release of the employee manual, and the
promise of benefits contained therein, are sustained. The remaining portions of Objections 2, 3,
and 4 are overruled.
. . . .