Campbell Products Department, Harry T. Campbell Sons Company, Division of Flintkote Company

National Labor Relations Board - Board Decisions

Mar 29, 1982

260 N.L.R.B. 1247 (N.L.R.B. 1982)

CAMPBELL PRODUCTS DEPARTMENT
Campbell Products Department, Harry T. Campbell
Sons Company, Division of Flintkote Company
and Local Union No. 560, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 22-
CA-8001
March 29, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND JENKINS
On September 14, 1981, Administrative Law
Judge Julius Cohen issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
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 record and the at-
tached Decision in light of the exceptions' and
brief and has decided to affirm the rulings,2 find-
ings, and conclusions of the Administrative Law
Judge.
We shall therefore reaffirm our previous deci-
sion 3 that, by refusing to bargain with the Union as
representative of the employees in the certified
unit, the Respondent violated Section 8(a)(5) and
(1) of the Act.
ORDER
It is hereby ordered that the Order issued by the
Board in Campbell Products Department, Harry T.
Campbell Sons Company, Division of Flintkote
Company, 235 NLRB 265 (1978), be, and it hereby
is, reaffirmed.
Contrary to the Respondent's contentions, there is no record evi-
dence that either the General Counsel or counsel for the Union encour-
aged or condoned employee Wyder's misleading of the Respondent's
counsel dunng his investigation.
I The Board does not, in cases such as this, reopen and remand the
underlying representation case. Whether the Respondent's refusal to bar-
gain violated the Act turns on the validity of the Union's certification
Since the Respondent attacks the Union's certification by attacking the
validity of the underlying election, the Administrative Law Judge prop-
erly imposed upon the Respondent, as an objecting party, the burden of
proving its objections to that election, as is the procedure in representa-
tion cases. See Gulf Coast Automolive Warehouse Company. Inc., 248
NLRB 380 (1980).
' Contrary to the Administrative Law Judge's recommendation, it is
not necessary to issue a new Order.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This pro-
ceeding was heard in Newark, New Jersey, on January 5
260 NLRB No. 161
and March 12 and 20, 1981. In Case 22-RC-7078 pursu-
ant to a petition filed by Local Union No. 560, a/w In-
ternational Brotherhood of Teamsters, Chauffeurs. Ware-
housemen and Helpers of America, herein called the
Union, an election by secret ballot was conducted on
May 20, 1977, in an appropriate unit of employees em-
ployed by Campbell Products Department, Harry T.
Campbell Sons Company, Division of Flintkote Compa-
ny, herein called Respondent. The Union having won
that election, Respondent filed a timely objection to the
election, alleging electioneering activities by a union ad-
herent in the vicinity of the polling place. On July 5,
1977, the Acting Regional Director for Region 22 issued
a Report on Objections recommending that Respondent's
objection be overruled in its entirety. During the course
of the investigation, Respondent filed an additional ob-
jection alleging the union agents warned employees that
if the Union lost the election the Employer would dis-
charge employees who had supported the Union. Con-
cededly this objection was untimely as it was received 12
days past the deadline for the filing of objections. The
Acting Regional Director recommended that this objec-
tion not be considered as untimely, but noted that assum-
ing it had been timely filed the investigation disclosed no
probative evidence that such statements had been made.
The Board, on September 23, 1977, overruled exceptions
filed by Respondent and adopted the Acting Regional
Director's recommendation and thereby certified the
Union as representative of the employees in the unit
found appropriate.
Subsequently, Respondent refused to recognize or bar-
gain with the Union and in the instant case, a complaint
was issued and upon a Motion for Summary Judgment
by the General Counsel, the Board issued a Decision and
Order granting the motion, finding that Respondent vio-
lated Section 8(a)(5) and (1) of the Act and ordering, on
March 20, 1978, Respondent to recognize and bargain
with the Union.'
Thereafter, the Board petitioned the United States
Court of Appeals for the Third Circuit for enforcement
of its Order directing Respondent to bargain with the
Union. The court held that the Board properly rejected
Respondent's objection relating to electioneering but fur-
ther found that the Board should consider and investi-
gate Respondent's concededly late-filed objection. The
court therefore denied enforcement of the Board's Order
and remanded the case to the Board for further proceed-
ings. 2 The Board then issued its Order on September 26,
1980, remanding the proceeding to the Regional Director
for further proceedings relating to Respondent's objec-
tion that union agents told employees Respondent would
fire union supporters if the Union lost the election. The
Board also ordered that a hearing be held before an ad-
ministrative law judge for the purposes stated in the
court's opinion.
A hearing was held pursuant to notice on the dates in-
dicated above,3 during which all parties were given full
235 NL RB 265
6h2
3 F2d 876 (3d Cir 1980)
3 The hearing was held and closed on January 5. 1981, but thereafter
upon motion of Ihe General Counsel, the hearing was reopened by order
Conrinued
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opportunity to participate, to introduce relevant evidence
bearing on Respondent's objection, to argue orally, and
to file briefs. Respondent submitted a brief which has
been carefully considered.
On the entire record in this case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
A. Facts
During the course of the investigation by the Regional
Director of the objection filed by Respondent, an affida-
vit was obtained from George A. Braun, fleet mainte-
nance supervisor for Respondent. In addition, Braun tes-
tified at the hearing during which he stated that an em-
ployee, Tom Perillo, with whom he frequently had
coffee during breaks, spoke to him about a union meeting
he had attended the previous evening. The conversation
with Perillo occurred during the week prior to the elec-
tion. Perillo informed Braun that he did not believe the
Union could win because too few people were attending
the meetings. Braun stated that he asked Perillo why
they do not postpone the election, to which Perillo re-
plied that the Union had told them at the meeting if they
postponed the election the Company would find reasons
to get rid of them or weed out the supporters of the
Union. Braun's affidavit submitted to the Board in 1977
is more or less to the same effect as he stated therein that
Perillo told him the Union said not to worry about with-
drawing the petition because if they did withdraw, "the
Company would weed us out before the next election."
Robert DeMattio, plant manager, testified on behalf of
Respondent that Tom Perillo continued in employment
until March 1978, approximately 10 months after the
election when he left Respondent's employ to go to
Florida. Presumably Respondent made no effort to com-
municate with Perillo or obtain any statement from him
until 1 week before the hearing herein in January 1981
when it was unable to locate him.
Daniel Rubino, business agent of the Union, testified
that he was the only union agent involved in the organi-
zation of Respondent's employees. He stated that prior to
the election he conducted three meetings but at none of
them did he state that if the Union did not win the elec-
tion the Company would weed out the union supporters.
No other testimony or evidence was adduced at the
hearing, which was then closed. However, as noted, the
hearing was reopened when the General Counsel moved
for such action based on his having received the affida-
vits of Perillo and Rubino, which were in existence at
the time of the hearing, but through an inadvertence, not
available. In addition there were affidavits from six other
employees. In order to afford the parties further oppor-
tunity, the hearing was therefore reopened. Three indi-
viduals testified at the reopened hearing that they did not
attend a meeting within the last week preceding the elec-
tion and since Respondent's objection is confined to an
of the Administrative Law Judge dated Febraury 17, 1981, to afford op-
portunity to all the parties to consider certain affidavits not available at
the time of the hearing in January, and call witnesses, if necessary.
alleged statement made at that time, their testimony
could be of no service to any party.
Pursuant to subpena served by the General Counsel,
Perillo testified at the reopened hearing, but his direct
testimony exhibited an almost complete lack of recall or
recollection concerning the event in question. However,
during the course of the investigation Perillo had given
an affidavit to the Board agent on June 15, 1977, when,
presumably, his recollection would have been better. In
this statement, Perillo said that he attended a union meet-
ing at the Dover Y.M.C.A. 3 days before the election;
that John Sweeney, Jeff Lee, Dave Sperry, Carl Jenson,
Frank Wydner, and Bill Stevens also attended the meet-
ing. In his affidavit Perillo said "there was no discussion
on the withdrawal petitions or on what the Company
had said or done or what their intentions were in con-
nection with the organization drive." As to his conversa-
tion with Braun, Perillo deposed that he had no conver-
sations with Braun concerning statements made by union
officers, that his only conversations with Braun about the
Union were initiated by Perillo himself, and Braun only
said to him that the Union would do him more harm
than good, and that he did tell Braun the day before the
election that he thought the Union was going to lose be-
cause the guys were changing their minds. Finally, Per-
illo testified at the hearing that while he no longer had
any recollection as to what had occurred, his affidavit
submitted to the Board investigator was true when he
gave it.
John Sweeney and David Sperry, employees at the
time of the election and still employed, both testified that
they attended the meeting during the week prior to the
election, but did not recall anything that transpired.
They were not contacted or interviewed by the Board
during the investigation.
The final witness, Frank Wydner, an employee of Re-
spondent, was called as a witness by the Union. Wydner
attended the meeting in question and stated that Rubino
had not said anything concerning what would happen to
employees if the Union withdrew the petition or lost the
election. However, Wydner said that at various meetings
employees brought up the subject of what would happen
if an employee were terminated after an election, and, at
this last meeting, Wydner brought it up himself. Rubino
responded that the Company could not do anything be-
cause the employees had signed cards which were turned
over to the Labor Board who would help them if there
were justified reasons. Wydner confirmed that Perillo,
Sweeney, and Sperry were at the meeting, and believed
that Jeff Lee also attended. In this connection, the Gen-
eral Counsel turned over to Respondent an affidavit
given to the Board during the investigation by Lee. The
parties stipulated that Lee, Stevens, and Jacobs named in
Perillo's affidavit, are no longer employed by Respond-
ent.
Wydner, on cross-examination, stated that prior to the
hearing he had spoken to Respondent's counsel and told
him that he did not remember anything about the meet-
ing. On the other hand, on the morning of the hearing,
he told the General Counsel and counsel for the Union
the substance of what he actually testified to at the hear-
1248
CAMPBELL PRODUCTS DEPARTMENT
ing. He conceded that he had not told the truth to Re-
spondent's counsel.
No further testimony or evidence was adduced by any
of the parties at the hearing.
B. Analysis
A summary of the evidence and testimony at the hear-
ing leads me to conclude that there is no probative evi-
dence to support the allegation that a union agent told
employees they would be weeded out or terminated by
Respondent in the event the Union lost the election.
Thus, Braun's affidavit merely contains a hearsay state-
ment that employee Perillo told him this is what oc-
curred at a meeting during the last week preceding the
election. Perillo himself testified he no longer had any
recollection as to what occurred at this meeting but
averred that his affidavit, received in evidence as past
recollection recorded, was true at the time he made it.
That statement does not reflect such threat having been
uttered at the meeting. Rubino, the union agent present
at the meeting, testified credibly and without contradic-
tion that he made no such statement. Three other wit-
nesses did not attend the meeting, and two others attend-
ed the meeting but had no recollection of what occurred.
That leaves the testimony of Wydner, who stated that
Rubino made no threat as alleged. Respondent urges that
Wydner be discredited since he admitted not telling the
truth to Respondent's counsel who had discussed the
matter with him. Disregarding Wydner's testimony be-
cause of his obvious bias and his admitted failure to tell
the truth to counsel leaves the record still bare of any
affirmative probative evidence that the union agent made
the threat as alleged in Respondent's objection.
It is well settled that the burden is on the party who
seeks to overturn the election to establish that objection-
able conduct existed which requires such a result.4 Re-
spondent recognizes this but nevertheless relies, in its
brief, on allegations that the Regional Director did not
conduct a thorough enough investigation, and, moreover,
the lapse of time caused failure of recollection on the
part of witnesses who testified. In view of Respondent's
burden which a circuit court of appeals has described as
"heavy,"5 the ultimate responsibility must fall upon Re-
spondent itself. In this connection it is noted that Re-
spondent presented no witness other than Braun at this
hearing in support of its contention. The witnesses such
as they were and affidavits were made available by the
General Counsel. When additional affidavits were dis-
covered, the hearing was adjourned to afford Respond-
ent time to seek out these affiants. Respondent had Peril-
lo's affidavit and was aware of those employees who at-
tended the meeting. The fact that several of the employ-
ees were no longer employed is not sufficient to establish
(N.LR.B. v. Morrison Machine Works, 365 U.S. 123, 124 (1961).
' Gulf Coast Automotive Warehouse Company, Inc. v. NL.R.B., 588
F.2d 1096, 1100 (5th Cir. 1979)
that they would not have been available as witnesses.
Actually, Respondent did not produce even Perillo at
the hearing despite the fact that his alleged conversation
with Respondent's fleet maintenance supervisor, Braun,
was the basis for its objection. Respondent apparently
made no effort to obtain any statement from Perillo al-
though he continued in Respondent's employ for almost
10 months subsequent to the election and long after its
objection had been filed. As to Respondent's complaint
concerning the lapse of time involved in this litigation
causing failure of memory, its own responsibility is noted
by the testimony of its own witness that no effort during
the 3-year span was made to communicate with Perillo
until the week preceding the opening of the hearing
herein. In any case, it is well settled that there is no duty
upon "the Board staff to seek out evidence that would
warrant setting aside an election." N.L.R.B. v. Singleton
Packing Corp., 418 F.2d 275, 280 (5th Cir. 1969), cert.
denied 400 U.S. 824.
I therefore conclude on the basis of all of the forego-
ing that Respondent has failed in its burden to establish
that the Union had engaged in objectionable conduct to
warrant setting aside the election.6
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent failed to establish that an agent of the
Union told employees they would be terminated or
"weeded out" should the Union lose the election.
RECOMMENDATION
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, it is recommended' that the Board enter an
Order against Respondent containing the same cease-and-
desist provisions and affirmative remedial action as are
contained in the Order of the Board herein reported at
235 NLRB 265, 267 (1978), in accordance with that por-
tion of the Board's Decision and Order designated "The
Remedy."
6 I find no merit in Respondent's contention that, alternatively, a bar-
gaining order should be denied and a new election directed because of
the passage of time. Unlike a bargaining order based on authorization
cards, the Union's majority status herein was based on an election, and
the time interval was caused by Respondent's litigating an objection de-
termined to be groundless. See .L.R.B. v. Patent Trader, Inc., 426 F.2d
791, 792 (2d Cir. 1970).
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 10248 of the Rules and Regulations be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1249