JACMAR FOOD SERVICE DISTRIBUTION,

Docket Number21-RC-175833

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Jacmar Food Service Distribution and Food, Industrial & Beverage Warehouse, Drivers and Clerical Employees, Teamsters Local 630, International Brotherhood of Teamsters. Case 21–RC– 175833

February 22, 2017

ORDER

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS

PEARCE AND MCFERRAN

The Employer’s request for review of the Acting Regional Director’s Report on Objections1 and Certification of Representative is denied as it raises no substantial issues warranting review.2

1 We have treated the Acting Regional Director’s “Report on Objections” as a Decision on Objections. See 79 Fed. Reg. 74412 fn. 464 (Dec. 15, 2014).

2 We have no difficulty rejecting the contentions of the Employer and our dissenting colleague that the Acting Regional Director erred in overruling the Employer’s objections without a hearing. An objecting party has the duty of furnishing evidence or description of evidence that, if credited at a hearing, would warrant setting aside the election. Transcare New York, Inc., 355 NLRB 326, 326 (2010). The Employer’s proffered evidence here does not meet that standard.

With respect to Objection 1, the Employer contends (1) that a probationary employee-driver would testify that he signed a union authorization card only because another employee-driver told him that if he did not sign, the employee-driver would tell his supervisor that he was not a good worker, so that he would not pass his probationary period; and (2) that another employee would testify to his belief that he signed an authorization card involuntarily, i.e., only to be part of the group of drivers. As to the alleged threat involving the probationary employee, the Employer has proffered no evidence whatsoever indicating that the employee who assertedly made the threat was an agent of the Union, or was in a position to carry out the alleged threat. In any case, as the Acting Regional Director correctly explained, the alleged threat is clearly distinguishable from the sort of pre-petition conduct involving the solicitation of authorization cards that the Board has found objectionable. (In adopting the Acting Regional Director’s findings on this objection, we do not rely on his citation to Pacific Coast M.S. Industries, 355 NLRB 1422, 1443 (2010), as the Board did not reach the administrative law judge’s findings regarding the election objections. Id. at 1422.)

As to the second employee who claims he signed his card involuntarily “in order to be part of the group,” there is absolutely no hint of objectionable conduct by the Union, and we reject our dissenting colleague’s speculation that examining this employee’s situation at a hearing would somehow shed light on the asserted threat against the first employee. Lastly, we note that neither the alleged threat to the probationary employee nor the alleged circumstances relating to the second employee would meet the test for objectionable third-party conduct under Westwood Horizons Hotel, 270 NLRB 802, 803 (1984).

With respect to Objection 4, the Employer alleges various instances of misconduct by the Board agent conducting the election. As to this objection, our dissenting colleague argues that the Board should grant

Dated, Washington, D.C. February 22, 2017

_____________________________________

Mark Gaston Pearce, Member

_____________________________________

Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

ACTING CHAIRMAN MISCIMARRA, dissenting in part.

Contrary to my colleagues, I would grant the Employer’s request for...

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