Texas Meat Packers, Inc.

TEXAS MEAT PACKERS, INC., ETC. 279 Texas Meat Packers, Inc., Texas Meat and Provision Co., Spiritas & Sloan Inc. and Portion Control Meat Co. and Amalgamated Meat Cutters and Butcher Workmen of North America, Local 540, AFL-CIO, Petitioner. Case No. 16-RC-2598. February 15, 1961 SECOND SUPPLEMENTAL DECISION AND CERTIFICA- TION OF RESULTS OF ELECTION Pursuant to a Supplemental Decision and Direction issued by the Board on June 16, 1960,' the Regional Director was directed to open and count certain challenged ballots. As to the remaining challenged ballots and the objections of both the Petitioner and Employer as to the conduct of the election, the Board reserved its decision until after the above challenged ballots were opened and counted and a revised tally of ballots issued. Pursuant to the Board's direction the Regional Director opened and counted the aforesaid ballots, and, on June 21, 1960, served upon the parties a revised tally of ballots which showed that of approximately 208 eligible voters, 206 ballots were cast, of which 105 were against, and 97 were for, the Petitioner, 1 ballot was void, and 3 challenged ballots were unopened. In the light of the election results, the Board finds it unnecessary to pass upon the un- opened challenged ballots as they could not affect the election results, and further finds that the Employer's objections have become moot. The Board has considered the Petitioner's objections, the Regional Director's report, and the Petitioner's exceptions thereto, and for the reasons indicated in the report, with the additions and modifications noted below, finds in accord with the Regional Director, that the Petitioner's objections are without merit and hereby overrules them. In its objections, the Petitioner contends that the layoff of the 35 employees in the boning room shortly before the election was "wholly unprecedented in the history of the employer's operations" and was motivated by the fact that "this was the one area of the plant in which all of the employees were wearing union buttons . . . and the situs and heart of the union organizational drive...." The Peti- tioner is in effect alleging that the reasons advanced by the Employer are a pretext and the above layoff was, in fact, discriminatory. Thus, the gravamen of this contention is an unfair labor practice, requiring a finding that the Employer's conduct constituted a violation of Section 8(a) (3) of the Act. To make such a finding in a representation case would conflict with the statutory scheme which vests the General Counsel with final authority as to the issuance of complaints based upon unfair labor practice charges and the prosecution thereof. Cf. I Not published in NLRB volumes. 130 NLRB No. 33. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Times Square Stores Corporation, 79 NLRB 361, 365. Indeed, in cases involving challenges, it is well settled that, in the absence of unfair labor practices charges, a discharge will be presumed to be for cause. See, e.g., Stainless Welded Products, Inc., 104 NLRB 204, 205; Dura Steel Products Company, 111 NLRB 590, 591; National Foundry Company of New York, Inc., 112 NLRB 1214, 1216. In this case too, we must presume that the layoff in issue was not unlawfully motivated and that it cannot be considered a basis for setting aside the election. Of course, it does not follow from this holding that conduct which may be found to be an unfair labor prac- tice in the appropriate proceeding may never be considered in objec- tions to elections cases. It is Board practice to set aside elections because of substantial interference therewith arising from conduct which, in an unfair labor practice proceeding, would also be held violative of the Act. But, in such cases, the interference with the election is found to exist without regard to whether the interfering conduct would be deemed an unfair labor practice in a complaint case. For the effect of preelection conduct on an election is not tested by the same criteria as conduct alleged by a complaint to violate the Act. On tho other hand, where, as in the instant case, the conduct which is alleged to have interfered with the election could only be held to be such interference upon an initial finding that an unfair labor practice was committed, it is Board policy, as indicated above, not to inquire into such matters in the guise of considering objections to an election. In such cases, the election process may be protected by the timely filing of charges with respect to the conduct in question. Accordingly, we hold that the alleged discriminatory layoff complained herein cannot be considered in this proceeding as a basis for setting aside the election.2 The Petitioner also contends that certain preelection literature distributed by the Employer and the posting of a sign stating "put your vote for union buttons in this box, before it is too late," interfered with the election. However, we find, in agreement with the Regional Director, that such conduct is an insufficient basis for setting aside the election. In the absence of specific exceptions thereto, we shall adopt the Regional Director's recommendation that objections num- bered 2 (b) and 2 (d) be overruled. Accordingly, as the revised tally of ballots shows that the Petitioner has not received a majority of the valid ballots case, we shall certify the results of the election. [The Board certified that a majority of the valid votes was not cast for the Amalgamated Meat Cutters and Butcher Workmen of 2 Contrary to the dissent, only a very small minority of objections in representation cases are of the type here involved , I e , conduct innocent on Its face and which can only be shown to have interfered with an election by an initial finding that an unfair labor practice has been committed. TEXAS MEAT PACKERS, INC., ETC. 281 North America, Local 540, AFL-CIO, and that the said labor organ- ization is not the exclusive representative of the employees in the unit found appropriate.] MEMBER FANNING, dissenting : Unlike my colleagues, I would direct a hearing on the objections in this case to determine the substantial question of fact involved as raised by the Regional Director's report and the Petitioner's excep- tions thereto. The Petitioner's exceptions are based in part upon the facts that approximately 8 days before the election, 27 employees, of the 35 in the boning room, were laid off, all the employees in the boning room wore union buttons, the layoff was unprecedented, the leader of the organizational campaign was laid off without regard to seniority although the Employer claimed the layoff was based on seniority, and after the layoff the Employer distributed leaflets showing a person distributing handbills, stating "I am not working now, but why don't we join a union?" at a time when this union adherent was engaged in such activity in front of the plant. More disturbing to me, however, is the rule of general application to objections cases which the majority is enunciating here. It would be clear, albeit in error, were the majority to state that it will not con- sider objections to elections based on conduct which potentially con- stitutes unfair labor practices. Such a policy, although comprehen- sible, would give birth to two undesirable results. First, it would be a flagrant abdication of the Board's responsibility to the General Coun- sel to conduct elections under such conditions as will result in the free expression of the employees' will, under the guise that the statute demands such delegation. Secondly, it would eliminate the objections procedures. By far the overwhelming majority, if not essentially all, of the objections in representation cases is based upon conduct poten- tially constituting unfair labor practices. Objections would be re- quired to be converted into unfair labor practice cases with the consequent delay and expense involved in an unfair labor practice procedure-that is, charges, complaints, hearings before Trial Ex- aminers, exceptions to the Board, etc. However, the rule adopted by the majority does not even possess clarity. The majority, on one hand, states that to find that the layoffs would warrant setting aside the election would be to encroach upon the General Counsel's final authority as to the issuance of complaints in unfair labor practice cases. On the other hand, the majority also states : "Of course, it does not follow from this holding that conduct which may be found to be an unfair labor practice in the appropriate proceeding may never be considered in objections to elections cases. It is Board practice to set aside elections because of substantial inter- 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ference therewith arising from conduct which, in an unfair practice proceeding, would also be held violative of the Act." This rational- ization is just not logical. It says that unfair labor practices will not be considered in an objections case, because it encroaches upon the General Counsel's statutory authority; but it also says that, if such conduct constitutes substantial interference with the election, it will be considered in objections cases. If the Board's rule were to be based upon the General Counsel's statutory authority in unfair labor practice procedures, it seems to me that he has the same authority to issue complaints with respect to all unfair labor practices. It cer- tainly will never be clear under the majority position where the divin- ing rod will find water and where it will not. The Hurley Company, Inc. and International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, Petitioner. Case No. 26--RC-1392 (formerly 15-RC-2095). February 15, 1961 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Order Directing a Hearing issued by the Board on May 13, 1960,' a hearing was held on June 29, 1960, before Ray E. Breckenridge, hearing officer, at Camden, Arkansas, to resolve the material and substantial issues of fact raised in connection with Petitioner's objections Nos. 1 and 2.1 All parties appeared and participated at the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. On July 20, 1960, the hearing officer issued and served upon the parties his report and recommendation attached hereto, in which he found that the objections had merit, and recommended that they be sustained and that a new election be held. The Employer filed timely exceptions to certain findings and the recommendation of the hearing officer. The Board has reviewed the hearing officer's ruling made at the hearing and finds that no prejudicial error was committed. The i Not published in NLRB volumes. 2 In the above Decision and Order the Board panel ( Members Rodgers , Jenkins, and Fanning ), in the absence of exceptions thereto, adopted pro forma the Regional Director's recommendations that objections Nos. 3 and 5 be overruled , that abjection No. 13 of the challenged ballots be sustained , and 1 challenge be overruled As to objection No 4, in- volving a preelection speech urging the employees to reject the Petitioner , the Board found that the "statements contained therein, when read in the context of,the speech as a whole, were privileged expressions" and insufficient to interfere with the free choice of the employees in the election. 130 NLRB No. 43.