F. H. Snow Canning Co., Inc.

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. H. Snow Canning Company, Inc. and Local 56, Amalgamated Food and Allied Workers Union , Amalgamated Meat Cutters and Butcher Workmen of North America, AFL -CIO. Case No. 4-RC-3360. December 9, 1957 DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a stipulation for certification upon consent election, executed by the parties on May 14, 1957, an election by secret ballot was conducted in the stipulated unit on May 31, 1957, under the direc- tion and supervision of the Regional Director for the Fourth Region. Upon the conclusion of the election, the parties were furnished with a tally of ballots which shows that of 257 votes cast, 62 votes were for the Petitioner, 175 votes were against the Petitioner, 19 votes were challenged, and 1 was void. The challenged ballots are insufficient to affect the outcome of the election. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. On August 14, 1957, following an investigation, the Regional Director 'issued his report and recommendations on objections, in which he found no merit in the Petitioner's objections and recommended that they be overruled and that a certification of results of election be issued showing that the Petitioner had not been designated as bargaining representative by a majority of the employees. Thereafter, the Peti- tioner filed timely exceptions to the Regional Director's report and the Employer filed a reply to the exceptions. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has considered the Regional Director's report, the Peti- tioner's exceptions, the Employer's reply, and the entire record in this case and finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees constitute a unit appropriate for pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees at the Employer's Wild- wood, New Jersey, plant, excluding office clerical employees, marine 119 NLRB No. 84. F. H. SNOW CANNING COMPANY, INC. 715 shop employees, watchmen, guards, and supervisors as defined in the Act. 5. The Petitioner's objections to conduct affecting the results of the, election, and its exceptions, are lacking in merit for the following reasons: Objection No. 1 In its objections, the Petitioner contends that the day before the election herein, circulars which had been prepared with the aid and direction of the Employer were distributed among the plant employees during working hours by a 4-member nonunion committee; that the circulars contained false and defamatory statements; that the timing of the distribution was such that Petitioner could make no effective reply; and that the circulars interfered with a free choice of bargain- ing representatives. The circulars alleged that Plant Foreman Macomber was "offered a 1957 Buick if he would sell out the company and help organize the Union in the Plant"; that 2 employees were offered $1,000 apiece to help organize the plant, and that, on 3 separate occasions in 1953 and also just before the election, the Petitioner had offered the Employer a "sweetheart" contract for a term of 4 years during which "the wages now in effect and the working conditions would remain the same But: the company must agree to deduct each week from your wages the initiation fee and your Union dues. Actually this is all the Union is interested in." In his investigation, the Regional Director found that the circulars had been prepared by 2 employees, Hickman and Krouse, and that the Employer had nothing to do with their preparation; that shortly be- fore noon on the day prior to the election these 2 men with the aid of 2 other employees, Williams and Ridgway, distributed the circulars outside the plant; that Plant Foreman Macomber, having heard that .the 4 employees were distributing something outside the plant, looked out the window of his office to see what was going on, and noticed the 4 men passing out "something"; and that 2 of these employees were off duty at the time and the other 2 had free time during this period.' The Regional Director found no evidence to indicate that the plant employees were aware either (1), that Plant Foreman Macomber had observed the distribution of the circulars or (2) that he or any other representative of management knew of, approved, or were in any way connected with, their distribution. Accordingly, he concluded that the ' The Regional Director found that Hickman and Ridgway, who are shuckers , had been dismissed from work that day due to the shortage of clams , and that Krouse , who works on the clam juice line , and Williams , a floor helper , each had a free period 'at this time. He therefore concluded that the only responsibility that could be attributed to the Employer was Macomber's failure to stop the latter two from distributing the leaflets on company time. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer's responsibility for the distribution of the circulars was, at best, remote. The Regional Director also found that the contents of the circulars were not of such a nature as to warrant setting aside the election, but constituted campaign propaganda such as the Board has held it will not censor but will leave to the good sense of the employees to eval- uate 2 In reaching this conclusion, the Regional Director found rel- evant the fact that the Petitioner had availed itself of the opportunity before the election, by means of both a local newspaper story and a radio broadcast, to brand as false the allegations in the circulars and had also announced that it intended to sue the nonunion committee for libel. In its exceptions the Petitioner contends, and the Employer con- cedes in its reply to the exceptions, that the circular was not prepared by Hickman and Krouse, but, according to the testimony given by them in another proceeding, by Lazarus, who is a concessionaire oper- ating a canteen in the plant. The Petitioner asserts that : Lazarus has "a very close relationship" with the plant manager; the cost of preparing the circular was not paid by Hickman or Krouse; the Regional Director in his report has failed to state the results of his investigation of the relationship between Lazarus and the Employer; contrary to the finding of the Regional Director, the circumstances under which the 4 employees who distributed the circulars left their work indicated that the Employer must have acquiesced in such dis- tribution; the 4 employees, after the Petitioner's published denials, repeated the charges made in the circulars in conversations with em- ployees before the election, stating that they had proof of their charges; all 4 have since admitted under oath that they had no such proof ; the information in the circulars could only have come from Plant Foreman Macomber; and consequently, the Employer must be held responsible for their contents. We find no merit in the Petitioner's assertion that the Employer must be held responsible, through its alleged connection with Lazarus, for the preparation of the circular. The Petitioner has submitted no evidence, nor does it claim to have any, that the Employer expressly authorized Lazarus to prepare the circulars or procure their distribu- tion; nor do we believe that the Employer's business relation with 'Lazarus is such as to constitute him its agent for that purpose. We find further that the Employer's participation in the distribu- tion of the circulars by the four employees in question was not such as to warrant setting the election aside. Although the Regional Di- rector found that Macomber observed the distribution of the circulars and that at least 2 of the 4 employees involved were acting on com- pany time, the Petitioner does not claim to have any direct evidence 2 See Allis-Chalmers Mannfactnring Co., 117 NLRB 744. F. H. SNOW CANNING COMPANY, INC. 717 that Macomber or any other representative of management, contrary to the finding of the Regional Director, had any foreknowledge of the contents or nature of the circular.' Moreover, even assuming the Employer to be responsible for the preparation or distribution of the circular, we find that this campaign literature is not of such a nature as to require the Board to set aside the election. The Board will not undertake to censor campaign propaganda, unless the ability of employees to evaluate it has been so impaired by the use of forged campaign material or other campaign trickery that the uncoerced desires of the employees cannot be de- termined in an election 4 The Gummed Products Company 5 case, cited by the Petitioner, is distinguishable from the instant case. There, the petitioning union, about a week before the election, dis- tributed handbills setting forth the wage rates in a nearby plant covered by a contract negotiated by the petitioner. Two days later the employer in that case published to the employees the fact that the rates paid in the nearby plant were actually considerably lower than those given in the petitioner's handbills. On the day before the election the petitioner issued a second handbill in which it stated that the rates cited by the employer were those contained in a prior con- tract whereas those listed by the petitioner were the rates currently being paid under a new contract. The Regional Director found that there was in fact no new contract and the current rates had been correctly set forth by the employer. In setting aside the election in that case the Board found that the Petitioner's misrepresentation had exceeded the limits of permissible preelection propaganda and lowered the standards of campaigning to a level which impaired free- dom of choice by the employees. In so finding, the Board stressed the circumstance, inter alia, that the petitioner was in an authoritative position to know the wage rates in a contract negotiated by it. Here, the circular charged that the Petitioner had on several occa- sions offered the Employer a contract which would enable the Peti- tioner to profit at the expense of the interests of the employees. Unlike the Gummed Products Company case, the authors of the charge were not identified as persons likely to have first-hand knowl- edge of the subject matter of the charge,' and the employees were free 3 The Petitioner would apparently have the Board infer such foreknowledge from the al- leged close relationship between Macomber and Lazarus, and from the fact, as alleged, that Macomber had previously disclosed to the employees the offer of a Buick referred to in the circular . However , these alleged circumstances , even if proved , would not warrant a find- ing that Macomber had advance information of the contents of the circular. 4 Allis-Chalmers Manufacturing Co., supra. 6112 NLRB 1092. U In fact, the newspaper article referred to by the Regional Director identified the authors of "the circular by name and quoted a disclaimer by the Employer of any responsibility for the circular. This disclaimer was in the form of a letter which, according to the article, was distributed to the employees on May 31, the day of the election. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to weigh the contents of the circular against the public repudiation thereof by the Petitioner.' We believe, consequently, that the state- ments made in the circulars did. not unduly impair the employees' freedom of choice, but were merely permissible campaign propa- ganda s Therefore, as stated above, even assuming Employer respon- sibility for the circulars, we find this insufficient cause to set aside the election. Objection No. 2 The Petitioner contends that Plant Manager Macomber defaced a sample ballot in a notice of election supplied by the Board, by placing an "X" in the square designating a "No" vote. The Regional Direc- tor in his investigation found that 6 notices of election were posted in the plant about 1 week before the election, 1 next to the timecards rack; that a witness stated that the day after the notices were posted, he heard Macomber, who was standing at the timerack marking time- cards, tell two employees, "This is how you want to vote"; that he saw Macomber wave his pen or pencil toward the sample ballot; that the witness then noticed that the "No" block on the sample ballot, which previously had been blank, had been marked with a stroke. Macomber testified that lie was at the time clock on the morning of the election marking cards when an employee, whose knowledge of English is limited, asked him how he could vote for the Employer. Macomber called another employee who spoke to the first in Greek, which Macomber does not understand. Macomber denied that he marked the sample ballot in the notice of election and also denied that he ever saw a, marked notice. The employee who acted as interpreter testified that the sample ballot had a mark in the "No" box several days before the above incident, and stated that Macomber did not mark the ballot during the foregoing incident. In view of the limited evidence in support of this objection sub- mitted by the Petitioner, the controverting testimony by other wit- nesses, the fact that only 1 of 6 notices was assertedly marked, and the lack of complaint by the Petitioner during the critical period of almost a week before the election, the Regional Director recommended that the objection be overruled. In its exceptions, the Petitioner contends that the employee who allegedly saw Macomber mark the ballot informed the Petitioner's organizing committee members of this incident immediately after its 7 As to the other charges in the circular that the Petitioner had sought to enlist the aid of Macomber and two employees in its organizational campaign by substantial monetary inducements, it is not clear that such charges, in themselves, even if false, reflected un- favorably on Petiitoner's capacity or willingness to represent the employees effectively. In any event, we find that they, too, do not fall within the rule of the Gummed Prod- ucts Company case, for the reasons cited in the text. 8 See Mason Can Company, 115 NLRB 1408. F. H. SNOW CANNING COMPANY, INC. 719 occurrence; that these committee members so stated in the investiga- tion; and that the Regional Director has ignored this corroborating evidence. However, we do not think it necessary to resolve this conflict of testimony as to whether Macomber did in fact mark the ballot. By the Petitioner's own admission, it knew of this alleged defacement of the ballot about 1 week prior to the election, yet it took no steps to have the marking removed or complained in any manner until after the election. Moreover, even if we assume that 1 of the 6 posted ballots was marked in pencil with a single stroke, we do not believe that this could reasonably be construed by the employees as endorse- ment by the Board of the no-union choice in the election. Therefore, we find that this alleged defacement of the ballot by Macomber does not raise a substantial or material issue. Objection No. 3 The Petitioner asserted that, shortly before the election, Plant Manager Kleb summoned an employee to his office and interrogated her concerning the Petitioner, demanding to know the names of employees working on its behalf and using abusive language, and that many other employees received knowledge of this interrogation, which was designed to coerce the employees in the exercise of their free choice in the election. The employee who was allegedly interrogated by Kleb informed the Regional Director that, about a week before the election, Kleb stopped her in the plant hallway as she was coming to work and said, "I hear you are talking to a lot of your friends about the union"; that she told Kleb that she had not talked to anyone; that this was the extent of their conversation; that Kleb did not call her into his office, ask her the names of any union people, or use abusive language in talking to her; that a few other employees were walking down the hallway during the course of this brief conversation with Kleb ; that, in her opinion, these employees apparently overheard what Kleb said to her; and that she did not tell anyone about her conversation with Kleb. Kleb stated that he did stop this employee in the hallway and ask her about the rumor that she and the girls who rode to work with her were for the Petitioner and also informed her that he could not under- stand the rumor as she was one of the oldest employees and had always been satisfied; that she answered that she was quite put out about this question, and that she and the others who rode with her were not for the Petitioner; that, in K.leb's opinion, they were alone during this conversation. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Regional Director found that Kleb and the employee were in substantial agreement about their conversation, that Kleb ques- tioned this employee about her support of the Petitioner, that this incident involved 1 person (with possibly a few auditors) out of approximately 275 eligible voters, and that the Board has held that such an isolated incident of interrogation is insufficient to invalidate an election. In its exceptions, the Petitioner asserts that other witnesses stated during the investigation that the employee reported her interrogation to union committee members immediately after it took place and that she advised them that Kleb had used abusive language and had attempted to ascertain from her who were union supporters. However, even if we assume the truth of these allegations, we agree with the Regional Director that this isolated interrogation of a single employee, under all the circumstances here, is not sufficient reason to set aside the election.' Objection No. 4 The Petitioner contends that, at the time the election was conducted, the Employer submitted a payroll different from that previously made available by it and that this new payroll caused confusion among the Petitioner's observers and adherents, thus preventing a fair election. The Regional Director found in his investigation that on the day that the parties executed the consent-election agreement, May 14, 1957, the Employer had made available a payroll list to the Board's field examiners for checking the Petitioner's showing of interest. The Petitioner's representatives stated at the time that they were not then in a position to check the list for eligibility purposes, and the parties agreed that the Employer would furnish a list before the election for inspection by the Petitioner in the presence of company officials for the purpose of raising eligibility questions. However, the Petitioner waited until the day before the election, May 30, 1957, to make its payroll inspection, during which it objected to the inclusion of certain people. The Regional. Director found that the Petitioner had failed to show how the payroll list used during the election interfered with its outcome. He found that the Petitioner had challenged 6 persons during the course of the election and, although it urged the ineligibility of 9 unloaders, did not challenge their right to vote. The Regional Director concluded that, in view of all the circumstances, this objec- tion was in the nature of a post-election challenge, which is untimely under Board practice. 9 Barber Conran Company, 116 NLRB 24 ; Morganton Full Fashioned Hosiery Company, 107 NLRB 1534, 1537-8. F. H. SNOW CANNING COMPANY, INC. - 721 The Petitioner contends in its exceptions that the basis of its objet- tion is that the Employer added 25 new names to the second payroll list in a deliberate maneuver to confuse the Union's observers at the polls; that while it had given instructions to challenge those individ- uals who were part of the original payroll list, it had no advance knowledge that these 25 additional persons would appear at the polling place; that confusion resulted because the observers had no instructions or information about these individuals and, as a conse- quence, the observers were not in a position to challenge all of the voters who the Petitioner claimed were ineligible; and that many individuals voted without being challenged because of this confusion. In its reply to the exceptions, the Employer denies that the addition of the 25 names to the eligibility list was designed by it to confuse the Petitioner's observers, asserting that these were names of persons who were on leave when the first list was submitted or whose unit placement was doubtful. It is clear that the Petitioner had 24 hours within which to apprise its observers of the new names and whether to challenge them. Under these circumstances, we do not believe that the Employer should be held responsible for any neglect of Petitioner's observers to challenge voters. In any event, we find no merit in this objection, in the absence of any showing that the number of challenges which the observers neglected to make was sufficient to affect the outcome of the election. In view of the foregoing, and upon the record as a whole, we find that the Petitioner's objections and exceptions do not raise substan- tial or material issues affecting the results of the election.10 We therefore adopt the recommendations of the Regional Director and hereby overrule the Petitioner's objections. Accordingly, as the Peti- tioner failed to secure a majority of the valid ballots cast, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for Local 56, Amalgamated Food and Allied Workers Union, Amalgamated Meat Cutters and Butcher Workmen of North Amer- ica, AFL-CIO, and that said organization is not the exclusive representative of the Employer's employees in the unit found appropriate.] 10 In its exceptions , the Petitioner also contends that an alleged supervisor, Ralph Slocum, assertedly promised some floormen , about 1 week before the election, that the .Employer would give them an increase of 15 cents an hour if the Petitioner lost the election . In addition , the Petitioner asserts that Slocum and Lazarus brought intoxi- cating beverages to a small settlement where a number of the employees live and gave the beverages only to known Employer adherents . However, as these and other matters cited by Petitioner were not included in the original objections filed with the Regional Director, we find, in accord with Board rule, that they were not timely raised and may not now be considered by the Board . Sears Roebuck and Company, 115 NLRB 266, 270. 476321--58-vol. 119-47