Con-way Freight Inc.

National Labor Relations Board - Unpublished Board Decisions

Jul 8, 2015

16-RC-133896 (N.L.R.B. Jul. 8, 2015)

NOT INCLUDED PJMc
IN BOUND VOLUMES Laredo, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
CON-WAY FREIGHT
Employer
and Case 16-RC-133896
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL 657
Petitioner
DECISION AND CERTIFICATION OF REPRESENTATIVE
The National Labor Relations Board, by a three-member panel, has considered
objections to an election held September 12, 2014, and the hearing officer’s report
recommending disposition of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots shows 55 for and 49 against the
Petitioner, with 4 challenged ballots, an insufficient number to affect the results.
The Board has reviewed the record in light of the exceptions1 and briefs,2 has
adopted the hearing officer’s findings3 and recommendations,4 and finds that a
certification of representative should be issued.

1 Although the Employer excepts to the hearing officer’s finding that Antonio
Cruz’s testimony should not be discredited due to his alleged violation of the
sequestration order, this exception is bare and unsupported by argument. Accordingly,
pursuant to Sec. 102.46(b)(2) of the Board’s Rules and Regulations, we find that this
exception should be disregarded. See 2 Sisters Food Group, 357 NLRB No. 168, slip
op. at 3 fn. 11 (2011).
2 Member Johnson notes that the Employer’s citations of Electrical Workers Local
357 (Newtron Heat Trace, Inc.), 343 NLRB 1486, 1498 (2004), Bloomfield Health Care
Center, 352 NLRB 252, 256 (2008), and NLRB v. L & J Equipment Co., 745 F.2d 224,
233 (3rd Cir. 1984) within Sec. IV.B. of its supporting brief either do not fully support the
CERTIFICATION OF REPRESENTATIVE

positions they are cited for or contain inaccurate quotations. Sec. 102.46(c)(3) of the
Board's Rules and Regulations requires that parties “clearly” present the facts and law
relied on in support of their argument; he cautions that such citations fail to meet this
standard.
3 The Employer has 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 preponderance of all the relevant evidence convinces us that they are
incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have carefully examined
the record and find no basis for reversing the findings.
4 In adopting the hearing officer’s recommendation to overrule the Employer’s
Objection 10, we do not rely on the hearing officer’s finding that “there is a reasonable
possibility that some or all of this [vehicle] damage may have been tied, in some
undefined way, to the election campaign, or at least that employees reasonably could
reach that conclusion.” By merely establishing that the vehicles of four pro-Employer
employees sustained damage prior to the election, the Employer failed to show that the
vehicle damage was linked to the election campaign, the Union, or even Union
supporters. See, e.g., ATR Wire & Cable Co., 267 NLRB 204, 209–210 (1983), enfd.
752 F.2d 201 (6th Cir. 1985); Beaird-Poulan Division, 247 NLRB 1365, 1379–1381
(1980), enfd. 649 F.2d 589 (8th Cir. 1981); see also NLRB v. Bostik Division, 517 F.2d
971, 974 (6th Cir. 1975), enfg. 209 NLRB 956 (1974). Further, we do not rely on any
evidence of the employees’ subjective reactions to the vehicle damage because “[i]t is
well established that ‘the subjective reactions of employees are irrelevant to the
question of whether there was, in fact, objectionable conduct.’” Corner Furniture
Discount Center, Inc., 339 NLRB 1122, 1123 (2003) (quoting Picoma Industries, 296
NLRB 498, 499 (1989)).
Member Johnson agrees that Employer’s Objection 10 should be overruled
because the Employer failed to establish that the damage done to specific employees’
vehicles created a general atmosphere of fear and reprisal. Specifically, he notes that
there was no direct evidence connecting either the Petitioner or any pro-Petitioner
employees to the damage, nor was there evidence of widespread dissemination of any
broad-based pattern of vehicle damage (as opposed to limited dissemination of single
incidents of damage) amongst the employees in the unit. He notes, however, that there
may be instances where it would be reasonable to attribute vehicle damage to a certain
party to an election, even in the absence of express threats of vehicle damage or
specific evidence of responsibility. For example, where there was little or no prior
occurrence of vehicle damage, and subsequently only the vehicles of employees who
did not support the union were damaged, and a significant amount of this kind of
damage occurred and became clear to employee-voters before the election, he would
find objectionable conduct. However, the Employer failed to show such a scenario
here.
IT IS CERTIFIED that a majority of the valid ballots have been cast for
International Brotherhood of Teamsters, Local 657, and that it is the exclusive
collective-bargaining representative of the employees in the following appropriate unit:
Including: All full-time and regular part-time line haul and
p&d drivers, and dock workers (including those who load,
unload, those who handle over, short, & damaged goods,
and those who handle weights & inspection) employed by
the Employer at its facility located at 1472 Mines Road,
Laredo, Texas.
Excluding: Office clerical employees, employees not on Con-
way’s payroll, managers, guards and supervisors as defined
in the Act.
Dated, Washington, D.C., July 8, 2015.
__________________________
Mark Gaston Pearce, Chairman
__________________________
Harry I. Johnson, III, Member
__________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD