Farmers Union Creamery Association

FARMERS UNION CREAMERY ASSOCIATION 151 make such increases effective, as stated above, because of an upturn in Respond- ent's own business conditions . According to several foremen, however , employees requested wage increases all year around and employee turnover was no greater in 1957 than in prior years. Although Hirschman first testified that he had no knowledge of the Union's representation petition when, in August , he allegedly directed Sperber to include wage increases in the September 13 checks , he later testified to a "vague knowledge" of the petition at such time ; still later he admitted in effect, and I find, that he took such action with complete knowledge of the petition. Hirschman also first testified that he was unaware of the Union's organizational campaign before September 12 and he further denied counterefforts by Respondent in such connection ; the record demonstrates Hirschman's testimony incredible on both grounds. Conclusions Although I am convinced that Hirschman is not a truthful witness and that Sperber, his office manager, also is not entitled to belief, the record as made shows a pattern of September general increases and there is no evidence contraverting the testimony that the September 1957 increases were promulgated before the execution date (September 12) of the consent -election agreement . In these circumstances I am constrained to find that there is no record preponderance to support the General Counsel's complaint herein . I accordingly recommend dismissal of the complaint. Farmers Union Creamery Association, Petitioner and Local 74, General Drivers & Helpers Union, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case No. 18-RM 270. November 19, 1958 SECOND SUPPLEMENTAL DECISION AND CERTIFICA- TION OF RESULTS OF ELECTION Pursuant to a Second Direction of Election issued by the Board on July 1, 1958,1 an election by secret ballot was conducted on July 29, 1958, under the direction and supervision of the Regional Director for the Eighteenth Region among the employees in the unit found appro- priate by the Board. Upon the conclusion of the election the parties were furnished with a tally of ballots which showed that of 29 eligible voters, 25 cast valid ballots, of which 1 was for the Union, 11 were for no labor organization, and 13 ballots were challenged. The chal- lenged ballots were sufficient in number to affect the results of the election. On July 30, 1958, the Union filed objections to the conduct of the election. After investigating the issues raised by the objections and the challenges, the Regional Director on August 29, 1958, issued and duly served upon the parties his report in which he found that the objections raised no substantial or material issues with respect to the conduct of the election and recommended that they be overruled. He has also recommended that all the challenges be sustained and that a ' Unpublished. 122 NLRB No. 22 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certificate of results of election be issued. The Union filed timely exceptions to the report, requesting the Board to hold a hearing on the issues raised by its objections and by the challenges. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. Upon the entire record in this case the Board finds: The Employer is a farmers' cooperative operating a creamery, retail grocery store, and cafeteria at Minot, North Dakota, and normally employing about 25 persons. On or about December 10, 1957, the Union called a strike against the Employer and maintained a picket line at its premises until approximately March 14, 1958, when the strike was abandoned. Several employees had responded to the strike call but they did not return after the strike.' On May 1, 1958, the Union again went out on strike and has maintained a picket line at the Employer's premises from that date to at least the date of issuance of the Regional Director's report on objections and challenges. Addi- tional employees responded to this strike call. The Employer prepared an eligibility list before the second election which included all the employees then working and those employees who had joined either of the two strikes, but stated at the eligibility conference preceding the election that it would challenge all the strikers who had not returned on the ground that they had been permanently replaced. The Union thereupon indicated that it in- tended to challenge all the employees who were then working since they were not the Employer's regular working force. The Board agent in charge of the election refused to allow the Union to challenge the ballots of the employees who were working in eligible classifications on the prescribed eligibility date because, in his opinion, the challenges were without merit and were being made promiscuously. The Regional Director's report supports the Board agent in refusing to allow the Union to challenge the ballots of all those employed on the eligibility date, while permitting the Employer to challenge the ballots of the strike adherents. The Union's exceptions to the report contend that the strikers should have been permitted to vote because the Employer had indicated during the course of the negotiations that it would be willing to hire some of them back after the strike ended, and further, that its right to challenge was denied. We agree with the Regional Director that parties to an election do not have an indiscriminate right to challenge, particularly where the issues raised by the challenges have already been fully settled by the Board in a prior decision.3 However, the issue raised by the attempted 2 The Union filed charges on March 25 , 1958, alleging that two of the strikers were entitled to reinstatement but the charges were finally dismissed on August 8, 1958, for lack of sufficient evidence. 8 Cooper Supply Company, 120 NLRB 1023. FARMERS UNION CREAMERY ASSOCIATION 153 challenges to the ballots of voters at the second election was clearly with regard to whether the strikers had been permanently replaced. We believe it would have been better practice for the Board agent to have allowed the Union to challenge at least those employees who had been hired since the date of the first strike, since their eligibility to vote depends on whether they had in fact permanently replaced the strikers. However, we are of the opinion that the Board agent's action has not been prejudicial because the crucial question of whether the strikers have been permanently replaced is properly before us through the Employer's challenges of the ballots cast by those indi- viduals who were not working on the eligibility date.4 We shall, therefore, consider the challenges which the Employer made to the ballots of persons not employed on the eligibility date for the second election and the Union's contention in its exceptions that the strikers were not permanently replaced. In his report on exceptions and challenges, the Regional Director classified the 13 challenges into 5 groups as follows : 1. Boehm, Kobanuk, Rivinius, Volk, and Hamilton are employees who responded to the first strike call. They were replaced during the period between December 10, 1957, and March 14, 1958, and did not seek reinstatement after the strike was abandoned. The Regional Director found that they were permanently replaced strikers, and recommended that the challenges to their votes be sustained. 2. Ziegler and Daniel Wolf were the subjects of the charge filed by the Union following the first strike which the Board eventually dismissed for lack of sufficient evidence. The Regional Director recommended that the challenges to their votes be sustained. 3. Spokely was found by the Board to be a supervisor in a prior proceeding, Case No. 18-RD-172 (unpublished). The Regional Director recommended that the challenge to his vote be sustained. 4. Joseph Wolf and Martin Wolf were employed as general helper and milk bottler, respectively, prior to the strike and have since been replaced. The Regional Director, having found that they were replaced economic strikers as of the date of the election, recom- mended that the challenges to their ballots be sustained. 5. Burnham, Heimbush, and Haman were strikers for whom no specific replacements had been hired. The Regional Director found, however, that their jobs have been combined with other jobs and their work duties assigned to other employees. The Regional Director found that since their jobs have been abolished, they have no reason- able expectancy of reemployment and he recommended that the challenges to their ballots be sustained. 4 Fruehauf Trailer Company, 106 NLRB 182, 185. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union's exceptions to the Regional Director's recommendations on the challenged ballots do not specifically controvert the facts on which the recommendations were based. The exceptions contend generally that the employees hired as replacements are temporary employees who had no prior creamery experience and who will pos- sibly have to be replaced. The Regional Director has, however, considered the Union's contentions and has found, on the contrary, that the employees hired as replacements were permanently employed. As the Union has failed to submit any further evidence to support its objection, we shall, in accordance with the Regional Director's recommendations, overrule it.5 In its objections to the conduct of the election, the Union also alleged that the Employer had intimidated and coerced employees prior to the election as to the way they were to vote. The Regional Director found that the only evidence supporting this objection was a statement of an employee that 1 week prior to the election a super- visor who was posting the election notice urged him to be sure to come to vote and asked him how he was going to vote. The super- visor denied that he asked the employee how he would vote. The Regional Director found this single incident insufficient to constitute a basis for setting aside the election, even assuming the truth of the employee's assertion. The exceptions to the report merely restate the objection. We agree with the Regional Director that this incident raises no substantial or material issue necessitating a hearing as, in our opinion, it would not constitute a basis for setting aside the elec- tion. The Union's objection is therefore overruled. We have found that the Union's exceptions raise no substantial and material issues requiring a hearing. As we also agree with the Regional Director's recommendation that the challenges to the 13 ballots be sustained, we shall overrule the exceptions in their entirety. As the Union has failed to secure a majority of the 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 74, General Drivers & Helpers Union, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and that this Union is not the exclusive representative of the Em- ployer's Minot, North Dakota, employees in the unit found to be appropriate by the Board.] 5 After filing its exceptions to the Regional Director's report, the Union advised the Board that the retail grocery which the Employer operated has been closed as sub- stantiating its claim that the employees working there were only temporary employees who should not have been permitted to vote. We do not regard the shutting down of a small part of the Employer 's operations long after the strike began, as evidence bearing on whether those employees were permanent replacements for the strikers.