IDAB, Inc., 554 (1984)

Docket Number:12-CA-09147
 
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD

IDAB, Inc. and International Association of Ma- decided to affirm the judge's rulings, findings,4 and chinists and Aerospace Workers, AFL-CIO. conclusions and to adopt the recommended Order.

Case 12-CA-9147

28 March 1984 SUPPLEMENTAL DECISION AND

ORDER

BY CHAIRMAN DOTSON AND MEMBERS

ZIMMERMAN AND HUNTER

On 11 August 1980 the National Labor Relations Board issued its Decision and Order in this proceeding, 1 in which the Board granted the General Counsel's Motion for Summary Judgment finding that the Respondent had violated Section 8(a)(5) and (l) of the Act by refusing to bargain with the Union previously certified by the Board as the exclusive bargaining representative of a unit of the Respondent's employees.2

Upon a petition for review and cross-application for enforcement of the Board's Order, the court of appeals remanded the case to the Board for further consideration consistent with its opinion.3

The court concluded that the Respondent had made a sufficient prima facie showing in support of its objections to entitle it to a hearing on those objections. Specifically, the court found, inter alia, that affidavits submitted by the Respondent raised substantial and material issues of fact as to whether an atmosphere of fear and violence at the time of the election and/or alleged electioneering at the polls destroyed the atmosphere necessary for the excercise of a free choice by the voters. On 27 May 1982 the Board issued its order remanding proceeding to the Regional Director and directed a hearing for the purposes set forth in the court's opinion. A hearing was then held before Administrative Law Judge Howard I. Grossman 14, 15, and 16 June and 7 and 8 September 1982, and 8 February 1983 the judge issued the attached supplemental decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a threemember panel.

The Board has considered the decision and the record in light of the exceptions and brief and has ' 251 NLRB 19.

s On 26 March 1980 the Board adopted the Regional Director for Region 12's recommendation that the Respondent's objections to an election held I November 1979 be overruled in their entirety and that the Union be certified as the exclusive bargaining representative of the appropriate unit.

E3DS-IDAB. Inc. v.NLRB, 666 F.2d 971 (5th Cir. 1982).

269 NLRB No. 100

4 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).

We have carefully examined the judge's decision, the Respondent's exceptions, and the record and note the following.

The Respondent contends that the judge erred in considering evidence that the Respondent attempted to influence the testimony of witnesses in the hearing. However, the judge's finding of a 'proclivity' on the part of the Respondent to attempt to influence the testimony of the witnesses in this proceeding, though possibly relevant in some respects, is not an essential element of his credibility findings and we do not rely on it in that regard. An exception in this respect concerns employee Ugarte, since the evidence regarding his attempted manipulation of witnesses prior to the hearing logically and properly was considered by the judge in evaluating his testimony.

The Respondent further argues that the judge failed to mention certain testimony of employee Gonzalez to the effect that Gonzalez had heard a rumor prior to the election that employee Rodriguez threatened employee Contreras with a gun. Since the judge found that the incident with the gun never occurred, and that rumors regarding threats did not circulate until after the election, we conclude that Gonzalez' testimony on this point was contrary to weight of the evidence and therefore is discredited.

In this regard, we find it unnecessary to pass on the judge's conclusion that the rumors were not widespread, since we agree with this finding that they were circulated after the election. We also note that the judge erroneously referred to witness Mures as a female, and that, contrary to the finding of the judge, Mures was not still employed by the Respondent at the time of the hearing. In our view this undermines the judge's crediting of Mures and therefore we disregard the testimony of Mures in its entirety. The judge relied on Mures' testimony primarily as corroboration of the testimony of Union organizer Klinakas about Klinakas' instructions to union sympathizers and of the testimony of Jorge and Gonzalez concerning Jorge's conduct at the polls. With regard to the former, we are satisfied that since the judge credited Klinakas as to other matters due to the detailed and plausible nature of his testimony, his testimony regarding his instructions was equally credible in the absence of Mures' corroboration. With regard to Jorge's conduct while the polls were open, we find no reason to disturb the judge's crediting of Jorge's and Gonzalez' testimony, even without the corroboration of Mures, since the contrary testimony of the Respondent's witnesses is inconsistent and conflicting, and fails to establish objectionable conduct even when considered standing alone.

Finally, we note that the Respondent is correct in asserting that there is uncontradicted testimony that employees Cincentes' and Wilk's tires were tampered with before the election. Since no evidence was adduced which connected these matters with the election, we find it unnecessary to pass on the veracity of such testimony. We also find it unnecessary to rely on the judge's comments at sec. 11,B,6 of his decision that, 'considering Wilk's physical attributes, I consider it unlikely that the union sympathizers would have done anything to his property even if they were of a mind to do so.' Thus, in view of our examination of the record and of the foregoing, with the exception of Mures as set forth above, we find that the judge's credibility resolutions are fully supported by the weight of the evidence and the reasonable probabilities of the situation. Universal Camera Corp. v.

NLRB, 340 U.S. 474 (1951).

The judge found no factual support for the Respondent's objections with the exception of observer Gonzalez' wearing a union button during the polling period. With respect to Gonzalez, a member of the in-plant organizing committee, we note, as did the judge, that the reviewing court, citing one of its own decisions, stated that such conduct, 'considered in isolation will not ordinarily be sufficient to invalidate an election.' EDS-IDAB, Inc. v. NLRB, 666 F.2d 971 fn. 6 (5th Cir. 1982). We therefore find it unnecessary to consider whether members of the in-plant organizing committee acted as agents of the Union, and do not rely on fn. 34 of the judge's decision.

554

IDAB, INC.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, IDAB, Inc.,

Hialeah Gardens, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

SUPPLEMENTAL DECISION

STATEMENT OF THE CASE

HOWARD I. GROSSMAN, Administrative Law Judge.

The International Association of Machinists and Aerospace Workers, AFL-CIO (the Union or Petitioner), filed a petition in Case 12-RC-5725 on August 20, 1979, and amended it on August 27, seeking to represent certain employees of IDAB, Inc.' (the Respondent or the Employer).2

Pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted on November 1, 1979. The tally of ballots indicated that of appproximately 86 eligible voters, 44 cast ballots for, and 37 against, the Union-Petitioner. There were two challenged ballots, which were insufficient in number to affect the results of the election. On November 8, 1979, the Employer filed objections to conduct affecting the results of the election.:

On December 18, 1979, the Regional Director for Region 12 issued his Report on Objections to the election in which he recommended that the Board overrule the Employer's Objections in their entirety, that the Employer's request for a hearing be denied, and that the Union be certified as the exclusive representative of all employees in the bargaining unit set forth in the election agreement. On January 7, 1980, the Respondent-Employer filed exceptions to the Regional Director's report, arguing that the election should be set aside, or that a hearing should be held on the objections. Thereafter, on March 26, 1980, the National Labor Relations Board (the Board) adopted the Regional Director's recommenda' At the time of earlier proceedings herein, the Respondent-Employer's name was 'EDS-IDAB, Inc.,' according to the Board's prior reported decision at 251 NLRB 19 (1980). During the instant hearing, the Respondent-Employer's counsel represented that the corporation had changed its name to that indicated above, and his motion to amend the name in this proceeding was granted without opposition upon counsel's assurance that no Board order which might issue as a result of these proceedings would be opposed on the ground of lack of notice. Although the Respondent-Employer's brief shows the abbreviation after 'IDAB' as 'INC.,' the record and the Board's prior decision state it in lower case; accordingly, I have used that form herein.

Ibid.

S The Respondent's brief sets forth the text of the objections. In essence they contend that (1) Petitioner's observer at the election, Al Gonzalez, wore a campaign button saying 'VOTE YES - FOR IAM' and that the Board agent did not ask him to remove it; (2) Petitioner's agents, members, employees, and supporters coerced...

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