Ward Trucking Corp.

National Labor Relations Board - Board Decisions

Sep 23, 1986

281 N.L.R.B. 542 (N.L.R.B. 1986)

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ward Trucking Corp . and International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, Local 107, Petitioner. Case
4-RC-15622
23 September 1986
DECISION, DIRECTION, AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
The National Labor Relations Board , by a three-
member panel , has considered determinative chal-
lenges and objections in a second election held 26
October 1984 and the hearing officer 's report rec-
ommending disposition of them . The election was
held pursuant to a Stipulated Election Agreement.'
The tally of ballots shows eight for and five against
the Petitioner, with six challenged ballots.
The Board has reviewed the record in light of
the exceptions and briefs, and has adopted the
hearing officer's findings and recommendations
only to the extent consistent herewith.2
The Petitioner's objection alleges, inter alia, that
the Employer paid for or subsidized the living ex-
penses of employees Bowers, Lucas, Michael Sinisi,
and John Sinisi after they transferred to the
Gloucester City, New Jersey terminal as an induce-
ment to vote against the Petitioner.
With respect to the Petitioner 's objection, the
hearing officer found , inter alia, that the Employer
allowed employees Gary Lucas, Michael Sinisi,
and John Sinisi to live in a "company house" in
order "to influence votes of the employees in the
election ." The hearing officer also found that the
Employer engaged in objectionable conduct by
providing employee Everette Bowers , on an open-
ended basis , $25 per week for meals , $25 per week
for lodging , and a weekly reimbursement for travel
expenses to go home on the weekends.3 We dis-
agree.
1. The Employer is a general commodities carri-
er with its headquarters in Altoona , Pennsylvania,
and operates 16 other terminals located in Pennsyl-
' On 13 July 1984 an election was held pursuant to a Stipulated Elec-
tion Agreement . The tally of ballots shows 9 votes for and 10 votes
against the Petitioner , with 3 determinative challenges . The Petitioner
filed timely objections to the election and on 17 August the Acting Re-
gional Director issued a Report on Objections to Election and Chal-
lenged Ballots recommending that certain of the objections and chal-
lenges be set for hearing. Subsequently, on 11 October, a supplemental
report issued setting the 13 July election aside pursuant to the parties'
stipulation and directing that a second election be conducted.
Y In the absence of exceptions, we adopt, pro forma , the hearing offi-
cer's recommendation that the challenges to the ballots of Gary Lucas,
John Sinisi, Michael Sinisi , and Everette Bowers be overruled and that
the remaining portions of the Petitioner's objection be overruled. We fur-
ther adopt the hearing officer's recommendations as to the remaining
challenges.
8 The hearing officer recommended all other portions of the Petition-
er's objection be overruled
vania, New Jersey, Ohio, and North Carolina. The
instant case involves an election held at the Em-
ployer's terminal in Gloucester City, New Jersey.
Included in the unit are, inter alia, all full- time and
part-time drivers, mechanics, and dockmen.
The undisputed facts show that employee Gary
Lucas transferred from the Employer's Harrisburg
terminal and began working at the Employer's
Gloucester terminal during the last week of July,
approximately 2 months before the election. John
Sinisi and his brother Michael transferred from the
Employer's Harrisburg facility and began working
in the Gloucester terminal during the second week
of August.4 The record reveals, and the hearing of-
ficer found, that the Employer had a policy of pro-
viding transferees with a $25-per-week meal allow-
ance for at least 2 weeks and open-ended lodging
costs with the length of time to be determined by
the Employer's director of operations Burns on a
case-by-case basis. Upon his transfer, Lucas lived at
the Gloucester City Inn for a period of 5 weeks at
the Employer's expense . John and Michael Sinisi
each initially boarded at the Gloucester City Inn
for a period of 4 weeks at the Employer's expense.
The evidence also reveals that during the critical
period the Employer was implementing a major
cost-efficiency project at the terminals, which had
as one of its objectives the lowering of the Em-
ployer's labor expenses. In or around the middle of
August 1984, the Employer's Gloucester operations
manager Delutis reviewed the prior month' s motel
expenses for himself and other employees and rec-
ommended to Bums that the Company rent a
house near the terminal in order to substantially
reduce the Employer's motel bills. 5 In September
1984 the Employer rented a house on a month-to-
month basis for $650 a month, and Lucas, the Sinisi
brothers, and dispatcher J. C. List agreed to do
general maintenance and yard work in return for a
monthly rent of $50. The house was thereafter oc-
cupied by these employees, Delutis, and the Em-
ployer's over-the-road drivers away from their
home terminal.
In finding merit in the Petitioner's objection that
the Employer subsidized the living expenses of
Lucas and the Sinisi brothers, the hearing officer
rejected the Employer's contention that the deci-
sion to obtain the "company house" was based
upon business considerations. In concluding that
4 In or around the second week of September, Everette Bowers trans-
ferred to the Gloucester terminal from Altoona The hearing officer
found no probative evidence that these three employees were temporary
employees and recommended that the challenges to their ballots be over-
ruled
b The credited testimony of Delutis reveals that the Employer was in-
curring between $1200-$1400 per month in motel expenses for the over-
the-road drivers alone
281 NLRB No. 83
WARD TRUCKING CORP.
Delutis recommended and that Burns made the de-
cision to rent the house, 6 the hearing officer found
it inherently improbable that while the owners
were implementing a major cost-efficiency project
they would have told Bums to reduce motel ex-
penses at only one of its terminals, and thus con-
cluded that Bums was not concerned with saving
costs when he decided to rent the house . The hear-
ing officer also relied on the fact that after the
election the drivers were no longer required to
remain in the house, and that Bums admitted that
his decision to keep the house was motivated in
part by his desire to provide a benefit to Lucas and
the Sinisi brothers . While recognizing that the Em-
ployer has a single-family home near its Altoona
facility, the hearing officer distinguished that situa-
tion by noting that the Employer rented the prop-
erty to employees on a long-term basis at a fair
market value . The hearing officer also distin-
guished the Employer's dormitory at its Little Falls
terminal by finding it was used primarily by over-
the-road drivers.7
Contrary to the hearing officer, we fmd that the
Employer has established that its decision to obtain
the "company house" was justified by business rea-
sons and was not a significant departure from its
past practice. As revealed by the record, the Em-
ployer's policy was to pay the living expenses of its
over-the-road drivers when they were away from
their home terminal . As further found by the hear-
ing officer, the Employer had an open-ended
policy of paying for the boarding expenses of re-
cently transferred employees , with the length of
such payments determined by Burns on a case-by-
case basis . Prior to September 1984, the Employ-
er's housing needs for its drivers and other employ-
ees in Gloucester were met by using the Glouces-
ter City Inn, and the record reveals that Delutis, as
well as Bums, felt that these costs were substantial.
Thus by obtaining the "company house" for $650
per month and charging its four employees $50 a
month to rent the premises , the Employer was able
to substantially reduce its hotel expenditures while
still providing for the housing needs for its man-
agement personnel and over-the -road drivers, as
well as those of the recent transferees . Thus, we
find the Employer has established that its decision
to obtain the "company house" was made for le-
gitimate business reasons.
6 Burns had suggested that the employees stay in the trailer owned and
occupied by employee Everette Bowers, who would be shortly transfer-
ring to the Employer's Gloucester operations . Delutis disagreed with this
idea and recommended renting a house.
T We also note that the hearing officer in recommending that this por-
tion of the objection be sustained also erroneously relied on events occur-
ring after the election.
543
Furthermore , we cannot conclude that the Em-
ployer's decision to allow the three transferees to
rent the "company house" for $50 per month is the
type of benefit reasonably calculated to influence
the employees in the choice of their bargaining
representative . 8 Prior to the Employer's renting of
the "company house," the Employer had a policy
of lodging its employees , both transferees and over-
the-road drivers, at hotels and motels . Here, the
Employer lodged the transferees for 4 to 6 weeks
at the Gloucester City Inn, with employee Lucas
occupying a single room and the Sinisi brothers oc-
cupying at various times either single rooms or
sharing a room. After obtaining the three-bedroom
"company house" in September, however, the
transferees shared the house with the Employer's
management personnel. The house was also occu-
pied at different times by various over-the-road
drivers . During this period , the transferees, in addi-
tion to paying the rent, performed housekeeping
chores such as changing sheets and towels, making
beds, mopping floors, vacuuming, washing dishes,
and performing lawn maintenance services. Fur-
ther, the record evidence is uncontroverted that
the house was unfurnished, dirty, and in need of
repair. Given that the Employer's decision to
obtain the "company house" resulted in employees
having to pay rent and perform chores in exchange
for an apparently less desirable living arrangement,
we do not fmd that the Employer's decision was
reasonably calculated to influence the election
result.
Finally, we note that it was not unprecedented
for the Employer to provide some form of free or
subsidized housing for its transferred employees.
The record reveals that the Employer had a past
practice of providing free housing to its employees
for prolonged periods of time . During the first 2
weeks of the opening of the Employer's Allentown
operation, the Employer housed its recently trans-
ferred employees in a motel . Subsequently , the Em-
ployer converted a part of the second floor of the
terminal into living quarters for them . Such con-
version involved the installation of showers, new
wiring and plumbing , a kitchen, and household fur-
nishings . The credited testimony shows that the
Employer's operations field representative lived at
this newly converted facility for several months.
Other transferred employees lived at the facility for
as long as 14 months. Significantly , there, unlike
the instant case , the employees did not pay the
Employer for the privilege of staying there, nor
did they have to perform maintenance or upkeep
on the living quarters . Under these circumstances
6 Baltimore Catering Co., 148 NLRB 970, 973 (1964).
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we conclude, contrary to the hearing officer, that
the Employer did not engage in objectionable con-
duct by allowing employees Lucas and John and
Michael Sinisi to stay in the "company house" for
a rent of $50 per month. We therefore reverse the
hearing officer 's fording on this issue.
2. Contrary to the hearing officer , we also find
that the Employer did not engage in objectionable
conduct by providing certain benefits to newly
transferred employee Everette Bowers . Bowers
began working for the Employer at its Altoona fa-
cility in November 1973 as an over-the-road driver.
Thereafter, he was laid off for certain periods of
time and also worked as a dock employee. He
began working in the Gloucester terminal during
the second week of September 1984. Upon his
transfer , he received the following benefits on an
open-ended basis : $25 per week for meals, $25 per
week for lodging , $ 110 for expenses for a weekly
return home, and access to the Employer 's proper-
ty to park his camper.
Finding that the Employer had a policy of pro-
viding a $25-per-week meal allowance for at least 2
weeks and open-ended lodging costs with the
length of time determined by Bums on a case-by-
case basis, the hearing officer rejected the Employ-
er's assertion that the benefits were conferred in ac-
cordance with the Employer's past practice and
policy, or that the benefits were provided for busi-
ness reasons . Noting that employees Lucas and
John and Michael Sinisi each received meal allow-
ances for 2 weeks and motel expenses and lodging
expenses for approximately 6 weeks , the hearing
officer concluded that the open-ended benefit and
mileage allowance were given to Bowers to influ-
ence the votes of employees in the election.9 In
reaching this conclusion, the hearing officer relied
on the lack of record evidence that Charlie Goon,
who transferred from Altoona to Milton, received
any mileage allowance. The hearing officer also
noted that Bowers testified that he did not know
why he received the money for an extended
period.
It is undisputed that during the critical period
the Employer was involved in a significant reorga-
nization of its operations that would result in the
layoff of drivers and dockmen from the Altoona
terminal . Consequently, the employees working at
the Altoona terminal were told they could continue
their employment by transferring to one of eight
other terminals . The record reveals , and the hear-
ing officer found , that in course of these reorgani-
9 The hearing officer found that the Employer did not engage in ob-
jectionable conduct by allowing Bowers to keep his camper on the Em-
ployer's property . No exceptions were filed to this part of the hearing
officer's report.
zation efforts, transfer benefits were offered to em-
ployees who chose to transfer . Since Bowers was
near the bottom of the seniority list, and because of
the limited number of hours available at the Altoo-
na facility , he stated that he welcomed the oppor-
tunity to transfer . It is also clear from the record,
however, that Bowers preferred to work in Altoo-
na because his family lived there . The credited tes-
timony of Bowers also reveals that he was offered
the option of transferring to any number of termi-
nals, was never informed that his transfer opportu-
nities were limited to the Gloucester terminal, and
was never given any indication that the offer of
benefits he received would not be available if he
transferred to a different terminal. Moreover, the
benefits granted to Bowers were not clearly a de-
parture from the Employer 's past practice. While
the hearing officer relied on the lack of record evi-
dence that Charlie Goon received mileage allow-
ances during his transfer from Altoona to Milton,
we note that Goon 's situation was distinguishable
in that while he was on a temporary transfer from
Altoona to Scranton , he decided that he would not
transfer from Altoona . Thus, we cannot conclude
that the lack of evidence concerning mileage reim-
bursements to Goon establishes that the Employer
granted the mileage allowance to Bowers for an
improper purpose- 10
Nor can we conclude that the Employer 's provi-
sion to Bowers, on an open-ended basis, of $25 per
week for lodging warrants a finding that the Em-
ployer engaged in objectionable conduct . While the
hearing officer noted that meal and lodging bene-
fits were paid to Bowers while the latter was living
in his trailer, we note that , contrary to the hearing
officer 's fording, Burns did not clearly admit that
other employees who had lived in trailers on the
Employer's premises were paid only their regular
wages . Rather, Burns testified, in response to the
hearing officer's questions, that those employees
were paid their normal wages and benefits .11 Addi-
10 Operations Manager Wilkins testified that two transferees working
at the Allentown terminal traveled home on most weekends and did not,
to Wilkins' knowledge , receive mileage allowances. We also note, how-
ever, that the numerous documents introduced by the Employer, which
were received into evidence without objection , show that the Employer
at various tunes and for unspecified reasons has reimbursed its employees
for mileage . In reaching our conclusion here, we note the qualified nature
of Wilkins' testimony and that the facts concerning the other two em-
ployees were not further developed We conclude, considering all the
evidence here, that it has not been demonstrated that the granting of the
mileage allowance to Bowers was objectionable conduct.
I r The record reveals that Burna testified that those employees were
paid "their normal benefits to stay there," and were "paid whatever bene-
fits they would have got even if they hadn 't of slept there or not." Thus,
while it is unclear as to exactly what his testimony means , it is clear from
the record that Burns' testimony was not an admission that the employees
received only their regular wages.
WARD TRUCKING CORP.
tionally, the credited testimony of Operations Man-
ager Wilkins establishes that the Employer has on
occasion paid employees "expenses" that the em-
ployees did not actually incur . Thus, the record
shows that upon the transfer of employees Epply
and Cunningham to the Employer's Allentown ter-
minal, the Employer provided each employee with
a check for the full cost of motel expenses even
though the Employer was aware that the employ-
ees incurred no expenses because they stayed in the
Allentown terminal living quarters free of
charge.12
In light of the foregoing, we cannot conclude
that the Employer's decision to provide open-
ended meals, lodging, and mileage allowances to
Bowers, a long-time employee, is the type of bene-
12 Nor do we find persuasive the hearing officer's attempt to distin-
guish the benefits paid in the past on the grounds they were paid in a
lump sum form.
545
fit reasonably calculated to influence the votes of
employees in the election . Accordingly, we over-
rule the Petitioner's objection in its entirety.
DIRECTION
IT IS DIRECTED that the Regional Director for
Region 4 shall , within 10 days from the date of this
Decision, Direction, and Order, open and count
the ballots of Gary Lucas, Michael Sinisi, John
Sinisi, and Everette Bowers, and prepare and serve
on the parties a revised tally of ballots. Thereafter,
the Regional Director shall issue the appropriate
certification.
ORDER
It is ordered that the above-entitled matter be re-
ferred to the Regional Director for Region 4 for
further processing consistent with this Decision,
Direction, and Order.