Liquid Transporters, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 420 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 420
Liquid Transporters, Inc., a wholly owned subsidiary
of Trimac Transportation, Inc. and Interna-
tional Brotherhood of Teamsters, Local 107,
AFL–CIO, Petitioner. Cases 4–RC–20215 and 4–
RC–20216
September 28, 2001
ORDER DENYING REVIEW
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel,
which has considered the Employer’s request for review
of the Regional Director’s Supplemental Decision on
Objections and Certification of Representative and Peti-
tion to Revoke the Certification (pertinent portions of
which are attached as an appendix). The request for re-
view and petition to revoke certification are denied as
they raise no substantial issues warranting review.
In denying review with respect to Objection 1, we find
that the Employer is precluded from objecting to the
Petitioner’s use of Patrick Webb as an observer.
Objection 1 alleges that Webb is a statutory supervisor
and that the Union’s use of him as an election observer
constitutes grounds for setting aside the election. As the
Employer notes, the Board recently overruled precedent
and held that a union’s use of a statutory supervisor as an
election observer constitutes objectionable conduct.
Family Service Agency, 331 NLRB 850 (2000). It is
well-established Board law, however, that an employer
must raise the alleged supervisory status of a union’s
election observer at the time of the preelection confer-
ence; otherwise, any such objection is precluded, and the
employer may not raise the issue for the first time in its
post-election objections. See Monarch Building Supply,
276 NLRB 116 (1985); Mid-Continent Spring Co. of
Kentucky, 273 NLRB 884, 887 (1984); and Howard Coo-
per Corp., 121 NLRB 950 (1958).

Further, the Employer included Webb as an eligible
voter on its Excelsior list and did not challenge his vote
in the election. Also, at the preelection hearing in Case
4–RC–19705 (which was incorporated into the record
here), and in the preelection hearing in this case, the Em-
ployer never contended that Webb was a statutory super-
visor and did not request review in either case of the Re-
gional Director’s inclusion of Webb in the unit. Finally,
in its Order dated July 27, 2001, the Board specifically
found that Webb did not exercise statutory supervisory
authority, and the Employer failed to file a motion for
reconsideration of that finding.
Accordingly, we find that the Employer may not now
raise the issue of Webb’s supervisory status as a basis to
contest the election.1
APPENDIX
SUPPLEMENTAL DECISION ON OBJECTIONS TO
ELECTION AND CERTIFICATION OF REPRESENTATIVE
Pursuant to Section 102.69(c) of the Board’s Rules and
Regulations, an investigation of the objections was conducted
under my supervision. The objections and supporting evidence
submitted by the Employer have been carefully considered.
The investigation disclosed and the undersigned reports as fol-
lows:1
Objection 1
This objection concerns the Petitioner’s use of Patrick Webb
as an election observer. In support of this objection, the Em-
ployer submitted an affidavit of Dispatcher Corinne Anne Coo-
per stating that Webb served as the Petitioner’s observer during
the second voting session of the July 27, 2001 election. The
Employer argues that Webb is a supervisor within the meaning
of Section 2(11) of the Act, and that his use as an observer was
improper under the Board’s decision in Family Service Agency,
331 NLRB 850 (2000). The Employer also argues that a collo-
quy during the course of the representation hearing was insuffi-
cient to constitute a stipulation that Webb is not a statutory
supervisor.
Notwithstanding the Employer’s contentions concerning
Webb’s status, the Board, in denying the Employer’s Request
for Review in these cases, specifically held that Webb “does
not exercise supervisory authority in the interest of the Em-
ployer.” Board Order dated July 27, 2001 fn. 1 (unpublished).
Accordingly, as it has been determined that Webb was an eligi-
ble voter and not a statutory supervisor, I find that Objection 1
lacks merit.
1 Although Member Truesdale dissented in Family Service Agency,
he agrees with his colleagues that the Employer has waived its right to
file an objection to the election under the holding in that case.
1 It is well established that it is the duty of the party filing objections
to furnish evidence sufficient to establish a prima facie case in support
of the objections before the Regional Director is required to investigate
the objections further. See Aurora Steel Products, 240 NLRB 46 fn. 3
(1979); Allen Tyler & Son, 234 NLRB 212 fn. 2 (1978). For the rea-
sons set forth herein, I have concluded that the evidence proffered by
the Employer in support of its objections to the election does not pro-
vide a basis for conducting a hearing in this matter. In considering the
objections, I have presumed that the evidence presented by the Em-
ployer is true. Moreover, presuming the truth of the Employer’s evi-
dence and contentions, I have concluded as a matter of law that the
alleged objectionable conduct does not warrant setting aside the elec-
tion. Accordingly, I have concluded that no hearing is necessary to
resolve these objections. Sec. 102.69(c) of the Board’s Rules and
Regulations; Park Chevrolet-Geo, Inc., 308 NLRB 1010 fn. 1 (1992).
336 NLRB No. 34