Hillcrest Poultry Industries, Inc.

1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall, after being signed by the Respondent, as indicated, be forthwith returned for disposition by him. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply herewith 22 =2 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read* "Notify said Regional Director, in writing, within 10 days from the date of this Oider, what steps Respondent has taken to comply herewith APPENDIX NOTICE TO ALL OUR MEMBERS AND TO EMPLOYEES OF BABCOCK & WILCOX COM- PANY, BALTIMORE GAS AND ELECTRIC COMPANY, WALLACE AND GALE, AND COMBUSTION ASSOCIATES, INC. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby give notice that: WE WILL NOT engage in, or induce or encourage any individual employed by Babcock & Wilcox Company, Baltimore Gas and Electric Company, Wal- lace and Gale, or by any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or refusal in the course of his em- ployment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities or perform any services, or threaten, coerce, or restrain Babcock & Wilcox Company, Baltimore Gas and Electric Company, Wallace and Gale, Combustion Associates, Inc., or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require Babcock & Wilcox Com- pany or Wallace and Gale to cease doing business with Baltimore Gas and Elec- tric Company, or Baltimore Gas and Electric Company to cease doing business with Combustion Associates, Inc., in order to force or require Combustion Associates, Inc., to cease doing business with Green Contracting Company. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, LOCAL No 193, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore 2, Maryland. Telephone No 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. Hillcrest Poultry Industries, Inc. and Amalgamated Meat Cut- ters and Butcher Workmen of North America , Local 385, AFL- CIO. Case No. 1-CA-4162. October 25, 1963 DECISION AND ORDER On August 1, 1963, Trial Examiner Jerry B. Stone issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. 144 NLRB No. 113. HILLCREST POULTRY INDUSTRIES, INC. 1221 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 [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.' 1 The Recommended Order is hereby amended by substituting for the first paragraph therein, the following paragraph: Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Hillcrest Poultry Industries, Inc, its officers, agents, successors, and assigns, shall: INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed on April 25, 1963, by Amalgamated Meat Cutters and Butcher Workmen of North America, Local 385, AFL-CIO, herein sometimes called the Union or Petitioner, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for the First Region (Boston, Massachusetts), issued his complaint dated May 14, 1963, against Hillcrest Poultry Industries, Inc., herein sometimes called the Respondent, the Employer, or the Company. In sub- stance the complaint allaged that Respondent had engaged in and was engaging in conduct proscribed by Section 8(a)(1) and (5) of the National Labor Relations Act, herein called the Act, and that such conduct affected, and was affecting, com- merce as set forth in Section 2(6) and (7) of the Act Respondent's answer admits many of the facts pleaded in the complaint, but denies the commission of any unfair labor practices Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry B. Stone at Lewiston, Maine on May 28, 1963. All parties were represented at and participated in the hearing and were afforded the right to present evidence, to examine and cross-examine witnesses, to offer oral arguments, and to file briefs The Respondent filed a brief and it has been considered Upon the entire record in this case, and from my observation of the witnesses, the following findings of fact, conclusions of law, and Recommended Order are made. FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Based upon the pleadings, it is found that Hillcrest Poultry Industries, Inc., is, and has been at all times material to this proceeding, a corporation duly organized under and existing by virtue of the laws of the State of Maine; that Respondent has maintained its principal office and place of business in the city of Lewiston, county of Androscoggin, and State of Maine, and is now, and continuously has been, engaged at its plant at that location in the sale and distribution of dressed poultry and related products; that Respondent (in the course and conduct of its business) causes, and continuously has caused, large quantities of materials, used by it in the sale and distribution of its products, to be purchased and transported in inter- state commerce from and through various States of the United States other than the State of Maine, and causes , and continuously has caused, substantial quantities 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of dressed poultry and related products to be sold and transported from its said plant in interstate commerce to States of the United States other than the State of Maine; and that Respondent (in the course and conduct of its business operations) annually sells and distributes at its said plant products valued in excess of $50,000, which are shipped from said plant directly to States of the United States other than the State of Maine. The evidence also reveals that the Respondent employs various employees in its aforesaid operations . I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and in connection with the acts described in section III of this report that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED Based upon the pleadings it is found that Amalgamated Meat Cutters and Butcher Workmen of North America, Local 385, AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The appropriate bargaining unit The complaint alleges, the answer admits , the Union and the Respondent so agreed in a consent-election agreement approved by the Regional Director on No- vember 28 , 1962 ,1 and I so find that all production and maintenance employees of the Respondent at its Lewiston , Maine, plant, including shipping and receiving em- ployees but excluding all office clerical employees , professional employees, farm supervisors , laboratory employees , salesmen, foremen , assistant foremen , floorladies, pickup crews , truckdrivers , guards, watchmen , and supervisors as defined in Sec- tion 2 ( 11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. B. The certification of the Union On March 29, 1963, Bernard L. Alpert, Regional Director for the First Region of the National Labor Relations Board, in Case No. 1-RC-7206 issued a document entitled "Report on Objections and Certification of Representative ." In this docu- ment Regional Director Alpert certified to the effect that on February 19, 1963, the Union had been designated and selected by a majority of the employees of the Respondent in the stipulated appropriate bargaining unit , and that the Union was the exclusive representative of all the employees in such unit for the purposes of collective bargaining. C. The refusal to bargain It is established by the pleadings that on or about March 12, 1963 , the Union requested the Respondent to bargain collectively in respect to rates of pay, wages, hours of employment , or other conditions of employment with the Union as the exclusive representative of all the employees of Respondent in the stipulated appro- priate bargaining unit, previously described , and that Respondent from on or about March 13, 1963, and at all times thereafter 2 has refused to bargain collectively with the Union as the exclusive representative of all the employees in the appropriate bargaining unit. Contentions The General Counsel contends that the refusal to bargain described in the fore- going section , in connection with the certified status of the Union, previously described, constitutes a refusal to bargain within the meaning and violative of Section 8 (a) (1) and (5) of the Act. The Respondent contends, in essence , that it has refused to bargain with the Union, but that it was under no obligation to bargain with the Union because the certification of the Union by the Regional Director was invalid . The Respondent contends in its answer 3 that the election held on December 11, 1962, was a valid 1 In Case No. 1-RC-7206. 2 Thus, the Respondent has continued to refuse to bargain with the Union after March 29, 1963 8 At the hearing the Respondent moved to amend to incorporate the objections to the elec- tion of February 19, 1963 , as part of its answer During the discussion relative to this motion the Trial ExamYner understood that this motion was to merely clarify the pleadings and not to enlarge or change the effect of the pleadings Upon reading the transcript, the HILLCREST POULTRY INDUSTRIES, INC. 1223 election and that the Regional Director's subsequent actions in refusing to certify the results of the election, in setting aside the election, in ordering a new election for February 19, 1963, in overruling the Respondent's objections to the February 19, 1963, election, and in certifying the results of the February 19, 1963, election were unreasonable, arbitrary and capricious, improper, and invalid. The Respondent in its brief argues and contends that an incident found by the Acting Regional Director in his report on objections (Case No. 1-RC-7206) dated January 18, 1963, to be objectionable did not, on the basis of the facts described by the Acting Regional Director in his report, appear to constitute any kind of viola- tion; 4 that in connection with the Regional Director's investigation of the various objections the Respondent was not afforded the names of the employees involved in the incidents and that such was needed to enable the Respondent to meet the charges against it and to test the evidence for credibility; that the Regional Director exhibited an obviously inconsistent attitude in his consideration of the objection to union conduct as opposed to his consideration of the objections to the Employer's conduct- that in this regard the Regional Director minimized the effect of union misstatements and found a bilingual credibility problem as to one of the Employer's witnesses in support of the Employer's objections but not as to the witnesses supporting the union objections; that the Employer had a right to access to the evidence considered by the Regional Director and had not waived such right by entering into a consent- election agreement; and that denial of a hearing by the Regional Director under the circumstances of the case and that the obviously inconsistent attitude of the Regional Director in judging alleged misconduct of the Employer and the Union constituted arbitrary and capricious acts on the part of the Regional Director. At the hearing in this matter Respondent counsel made certain statements with respect to his contentions. He stated that he was disagreeing with what the Regional Director had done in this case (Case No 1-RC-7206) but that he did not question the Regional Director's competence or integrity. Respondent's counsel stated that the Regional Office refused to identify for the Respondent the 15 or 20 employees involved and that therefore Respondent had no way of knowing whether or not, because of language barriers or language differences, some or all of these employees might have misinterpreted-honestly misinterpreted-something else that was said. Respondent's counsel also stated that he did not know what the Regional Director and Acting Regional Director had in their files or what kind of statements they had. The Relevant Facts 5 The Consent-Election Agreement The Respondent and the Union executed a consent-election agreement in Case No. 1-RC-7206 on November 27, 1962. On November 28, 1962, Regional Director Alpert approved the aforementioned consent-election agreement The consent- election agreement set forth the parties' agreement to the details concerning eligibility to vote, the date,6 hours and place of election, the appropriate collective-bargaining unit, the election procedures, and the handling of objections and challenges and related matter. The consent-election agreement included the parties' agreement to the following effect: 6. OBJECTIONS, CHALLENGES, REPORTS THEREON.-Objections to the conduct of the election or conduct affecting the results of the election, or to a determina- tion of representatives based on the results thereof, may be filed with the Regional Director within 5 days after issuance of the Tally of Ballots. Copies of such objections must be served upon the other parties at the time of filing with the Regional Director. The Regional Director shall investigate the matters contained in the objections and issue a report thereon If objections are sus- tained, the Regional Director may in his report include an order voiding the meaning and effect of the motion appears ambiguous and possibly to be injecting an issue beyond the question of arbitrary and capricious acts Accordingly, I reverse my ruling made at the hearing and strike the Respondent 's amendment to its answer 4 The incident referred to was set forth in said report as (a) under objection No. 3. This section Is Included In the excerpts set out later in this report. E The Respondent's rejected offer of proof went merely to what certain witnesses would now testify to as pertains to the merits of the objections He does not contend that the evidence Is newly discovered , nor that such was the evidence presented to the Regional Director O December 11, 1962. 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD results of the election and, in that event, shall be empowered to conduct a new election under the terms and provisions of this agreement at a date, time, and place to be determined by him. If the challenges are determinative of the results of the election, the Regional Director shall investigate the challenges and issue a report thereon. The method of investigation of objections and chal- lenges, including the question whether a hearing should be held in connection therewith, shall be determined by the Regional Director , whose decision shall be final and binding. There is no dispute that an election was held on December 11, 1962, and that the tally of ballots with respect to the election reflected that a majority of the ballots were cast against representation by the Petitioner (Union ). Nor is there dispute that the Petitioner (Union ) filed timely objections to the conduct of the election. At some date prior to January 18, 1963, the Respondent requested that it be granted a formal hearing before determination by the Regional Director of the aforesaid objections . It is undisputed that the Respondent was not granted a formal hearing in the matter. On January 18, 1963, Acting Regional Director Greene issued a report on objections (Case No. 1-RC-7206 ) concerning the objections relating to the election held on December 11, 1962. In the report the Acting Regional Director found it unnecessary to decide objection No. 1 relating to Respondent 's alleged conduct, found objection No. 2 to be without merit, and found that there was merit to Petitioner's objection No. 3. The Acting Regional Director set the December 11, 1962, election aside and stated that a new election would be conducted. Excerpted herein from the Acting Regional Director 's report on objections is the section devoted to the Union 's (Petitioner ) objection No. 3: Objection 3: The following incidents amply supported by credible evidence all occurred at various times between the filing of the Petition and the day of the election. [Footnote omitted.] (a) On or about November 28, 1962, Stephen Breton , the Employer's eviscerating department foreman, after criticizing an employee 's work per- formance, took the employee to the office of Philip (Tony ) Begos, the Em- ployer's personnel manager. After accusing the employee of not doing her job properly , Breton said he could fire her. He then asked the employee "to give the Company a chance . Just think of what the Company has done for you." Breton went on to mention the fact that the Company was giving its employees Thanksgiving and Christmas as paid holidays . He then denied that these benefits were given because of the union 's organizational efforts saying that Mendelson (the Employer's President ) was the new owner and that he, Mendelson, wanted to do right and "to give him a chance and he would do more in the future." The employee involved was a designated Union Com- mittee member whose activities as such were communicated to the Employer prior to this interview. (b) The investigation disclosed that a fund from which employees may borrow money is maintained from the proceeds of vending machines located in the Employer's plant. A Committee (comprised of two employees and three management or supervisory employees of the Employer ) determine whether an employee is entitled to receive a loan from this fund. In cooperation with the Committee the Employer will deduct weekly sums from an employee's pay to be applied against any such loans until the loan is repaid . On the morning of the election, Breton told approximately 15 or 20 employees ( during a break period ) that if they owed money and the union was elected , not to bother coming into work the next day because they would be discharged . He said they would be discharged since the union does not lend money and the office would not lend employees any money. (c) Approximately a week and a half before the election Dominic Santa- mingo, the Employer's plant foreman , asked an employee if the employee "was with the Company or with the Union " This same employee had previously been called to the office of Begos and told by Begos that the Company had lent him money and otherwise had treated him well , giving him overtime and allowing attachments to remain on his pay Begos told the employee that other companies would have fired an employee if attachments were made on his pay The employee was then asked if this was how to "treat the Comnany the way you do " Begos further said "We'll remember this." When asked by the employee if Begos meant the union business , Begos told the employee to draw his own conclusions saying "We'll remember this-don't you worry." HILLCREST POULTRY INDUSTRIES, INC. 1225 (d) The day before the election, Breton spoke to another employee at his work station in the presence of four or five others. Breton told the employee that if he voted for the union and the union won the election, the employee would not get any more overtime and that, furthermore, if Breton found out that the employee voted "yes" for the union he would get fired. The employer's representatives (Santamingo, Begos, and Breton) all denied making any of the above statements. However, the undersigned credits the employee-witnesses over the bare denials, does not believe that the above epi- sodes were invented by the several employees and finds that the above incidents have in fact occurred and that they constitute interrogation (paragraph 2(c) above), threats of reprisals, withdrawal of benefits and intimidation (in the other instances noted above) such as the Board has repeatedly found to be objectionable. Having concluded that merit attaches to Objection 3, the undersigned hereby sets the election aside and will conduct a new election at a time and place to be determined. [Footnotes omitted.] On January 29, 1963, the Respondent's attorney made a motion for reconsideration with respect to the Acting Regional Director's report on objection in Case No. 1-RC-7206 and requested an opportunity to be heard on the motion. Several days later, Respondent's counsel met with the Regional Director at the Regional Office. Respondent Counsel Maurice Epstein credibly testified to facts of the conference in the Regional Director's office as revealed by the following excerpt from his testimony: This conference was held in the Regional Director's office on some date after January 29th, 1963, and there were present, to the best of my recollection, the Regional Director, Bernie Alpert; the General Counsel-I mean, the Regional Attorney, Bob Greene, who had been Acting Regional Director at the time of the issuance of the original report; and either Bob Fuchs or Ernie Modern, or both They're both officials of the Regional Office of the National Labor Relations Board. Irving Isaacson, I was present, Mr. Mendelsohn of the com- pany, and either one or two or three of the-I know Mr. Breton was present, and maybe one or two other company employees. At any rate, at that time I opened the meeting by addressing at the Regional Director a rather lengthy argument stating the reasons why he should, as a matter of policy in a case of this kind, allow the employer's representatives to have access to the statements of employees and the report of the investigators on the basis of which he expected to support the report on objections, and also that for policy reasons, he should, in a case of this kind, order, or hold, a public hearing. He admitted that it was within his discretion; while he took the position while he was not required to do so, I felt that where the outcome of the objections depended at some points on resolution of questions of credibility-Mr. Alpert is a lawyer-I pointed out to him how he as a lawyer would feel frustrated if he was in the position that he put me into of having to come in and having to defend a company against charges without knowing what the evidence was against them; and I recall that at that meeting he either referred to the Saxe- Glassman case-and one of the Board officials took the position that Saxe- Glassman supported a refusal to grant us a hearing, and I pointed to the pro- visions in the Saxe-Glassman case which I read a little while ago here to the Trial Examiner which indicated-which pointed out that in the Saxe-Glassman case, a request for the evidence against the company had not been made until the Court of Appeals phase of the case and that in this case the request was being made much earlier. I wouldn't be sure without checking with the Board investigator with whom I worked on this case up in Lewiston whether or not the request for access to this material was made at that time-that would have been in the original investigation, that would have been prior to the issuance of the original report- but I am certain that the request both for a hearing and for access to the material was made at least as far back as the hearing in-not the hearing, strike the word hearing-as the conference in Bernie Alpert's office between the original report and the denial of the motion for reconsideration and long before the second election, or I wouldn't say long before it, several days, I guess, before the second election. At least it was sometime prior to the second election. It is undisputed that the Regional Director did not grant the Respondent a formal hearing in the matter, nor access to the evidence in his files (to the extent that 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent could examine or cross-examine witnesses or see their statements or affidavits). Thereafter a second election was conducted on February 19, 1962, and the tally of ballots reflected that the Union (Petitioner had received a majority of the votes cast. It is undisputed that the Respondent filed timely objections to conduct affect- ing the results of the election and to the conduct of the election. The Respondents letter setting forth the alleged objections requested that it be granted a hearing on the said objections "with at least the traditional safeguards, including the right to particulars as to allegations against it, that its evidence and all evidence be presented openly, under oath with the right of confrontation and cross-examination and other customary and recognized safeguards of due process." On March 29, 1963, Regional Director Bernard L. Alpert issued a report on ob- jections and certification of representative (Case No. 1-RC-7206). Excerpted from the aforesaid report are the sections of the report relating to Respondent's objections: 1. In support of this Objection, the Employer adduced the testimony of ten employees who gave information as to seven separate incidents, all of which purportedly occurred between the two elections, as specified below. None of the witnesses supported the claim of "interrogation." Two of said incidents involve alleged misstatements as to benefits at unionized plants made by an employee who was one of the in-plant leaders of the organiza- tional effort and also acted as Petitioner's observer at both elections. These statements were made during a discussion of the advantages and disadvan- tages of unionization with the respective employee-witnesses. It is well established that the Board will not, as a rule, hold a labor organiza- tion responsible for statements made by employees during an organization campaign even if such employees are identified as active for or leaders of the Union in the plant.' A third incident concerns a "house call" made by a Union organizer during which he allegedly stated to two employees "we'll get you $1.58 to $1 60 per hour-this is what they get at Maplewood " "Maplewood" refers to Maplewood Packing Company of Belfast, Maine, a poultry processing plant under contract with Petitioner. The latter also has contracts with Fort Halifax Packing Company and Penobscot Poultry Com- pany, Inc., both likewise in Maine. Benefits and conditions in all three plants played a great part in discussions among the employees (some of whom have worked for one or the other of these employers) and in the Petitioner's pre- election propaganda. While Maplewood has a somewhat lower pay rate than stated above, it is not disputed that the Fort Halifax contract does provide for the rate of $1.58. Therefore, the reference to "Maplewood" is, at the most, an insignificant error by the organizer, or an erroneous recollection by the employees who testified. The same background of the three Union contracts is to be borne in mind in relation to the next incident: After a Union meeting, a representative was asked by an employee, in the presence of six or seven others, how much the job of "cropper" pays at Penobscot. The representative stated, correctly as the investigation revealed, that the rate is $1.45. The employee who had asked this question alleges further that the Union representative stated that both the Fort Halifax, as well as the Penobscot contract, provide for time-and-a-half after eight hours. While this is true only as to Penobscot, Fort Halifax pro- vides for double time after ten hours. Finally, a reference to a "guaranteed" 40 hour week, allegedly stated as applying to both these contracts, is true only as to Penobscot, as the investigation has disclosed. Next, the Employer produced a witness who merely stated that a Union organizer gave him a leaflet containing wage comparisons with other unionized plants, urging him to read it to "see how far behind Hillcrest is." The Employer does not claim any misrepresentation in connection with this leaflet (distributed on February 18, the day before the re-run election), hence, did not submit a specimen. However, the undersigned, having requested one from Petitioner, has appended it here as Exhibit A since it clearly dispels or corrects such prior inaccurate wage comparisons between the plants in question, as may have been made earlier during conversations with individual employees. Another employee claims that during a house call an organizer stated that "with a union we should get $10 to $15 more per week," that part-time help would be eliminated and the employees would not have to nay for insurance themselves. It is clear and through use of the word "should" must have been 1 Sherry Manufacturing Company, 128 NLRB 739. HILLCREST POULTRY INDUSTRIES, INC. 1227 clear to the employee that the organizer presented these matters by way of listing some improvements the Petitioner would try to obtain for the employees. This has been repeatedly held privileged propaganda rather than objectionable "promises." 2 Two employees assert that Arthur Lebel, Petitioner's organizer, told them in the morning of the second election "If you don't get a $10. raise a week, I will personally pay your dues for a year." Lebel denies this. Even assum- ing the statement was made, it is to be pointed out that promises of this kind, if not made contingent on how an employee will vote, are not considered objectionable? Moreover, the Petitioner, only a few days before the election, on February 13, 1963, stated in a leaflet, as far as pertinent here, and "to, clear up once and for all the issue of dues and initiation fees for the employees." First, there will be no initiation fees required now or later for any Hill- crest employees who are eligible to vote in the February 19, 1963 N.L.R.B. election. Second, no Hillcrest employees will be required to pay any dues to this- Local until a contract has been approved by you and signed by your em- ployer and you are getting the benefits and pay increases. The last episode concerns an employee who claims that Lebel, at her home, told her that unless she voted for or joined the Union, the latter would see to it that she lose her job. Lebel denies this categorically. This young female employee lives in the house of another, older employee who, although she was not present during the organizer's visit, accompanied the younger one to the- interview with the Board agent. Whereas the younger employee appeared reticent and embarrassed, the older one displayed such fanatic and irrepressible- hostility towards Petitioner, attempted to make herself the spokesman for the- witness and interjected frequently her own views and opinions on the matter, so that the undersigned has doubts whether the entire incident occurred as al- leged. The witness, moreover, asserts that both the employee referred to above as one of the Union's leaders and Lebel appeared at her house, that the em- ployee threatened her, first, as stated, and that Lebel then repeated the same threat. This witness' command of English is extremely limited and Lebel does not speak French, the witness' native tongue. This introduces another element of unreliability into her testimony. However, even assuming the incident did occur as alleged, it is to be borne in mind that it pertains to one out of 251 eligible employees, and that no other objectionable conduct was disclosed. Therefore, the incident is to be con- sidered as isolated 4 and in itself insufficient to set the election aside. In sum, the undersigned concludes that Objection 1 lacks merit. 2-5 The Employer's complaint, as supported and elaborated upon in a Brief, may be summarized as twofold. First, that his requests for hearings on Peti- tioner's Objections to the first, and Employer's Objections to the second election were denied. In the alternative, "full access to all evidence considered" was requested and likewise denied to which Employer feels entitled since "after examining the material requested, we may feel that the refusal to hold a hearing would, under the circumstances, be arbitrary and capricious." [Emphasis supplied.] Secondly, the Employer complains to have been unable to obtain Board' review of the Report setting aside the first election. (Objection 2 in particular appears to refer to the contents of said Report utilized by Petitioner in its propaganda prior to the second election ) As to both points, reference is made to Article 6 of the Agreement for Con- sent Election which, as far as pertinent here states: "The method of investigation of Objections and Challenges, including the question whether a bearing should be held in connection therewith, shall' be determined by the Regional Director, whose decision shall be final and binding." See NLRB V. Saxe-Glassman Shoe Corp. 201 F. 2d 238 (C.C.A. 1) and also, 18th Annual Report of the NLRB (1953) p. 77. 2Spies Super Market of Flandreau, Inc, 123 NLRB 764. 9 Timber Laminators, Inc, 123 NLRB 60. 4 See, e.g., Lloyd A. Fry Roofing Company, 123 NLRB 86, 88. 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having carefully considered, prior to the issuance of the Report as well as thereafter upon Employer's Motion for Reconsideration, the latter's request for a hearing, the undersigned concluded that a hearing was not warranted.5 In its Brief the Employer claims (see also Objection 1) to be in possession of evidence and to have provided the Board agent, who investigated the instant Objections, with names of many employees who would testify to interrogation by an organizer as to how these employees were going to vote. The claim to have evidence in support of interrogation is made for the first time in Employer's Brief. During the investigation, all witnesses offered by the Employer were interviewed and the Employer's counsel in Lewiston affirmatively stated to the Board agent that those interviewed were, in fact, all whom the Employer de- sired to be interviewed. As this Report (pages 3-6 above) shows, none of the witnesses alleged interrogation. Even assuming, however, that such interrogation has, in fact, occurred, it would not be objectionable since "a labor organization seeking to organize a plant does not stand in the same position as an employer with full power over employees' employment tenure." [Footnote omitted.] It is concluded that Objections 2-5 are lacking in merit. Having concluded that no merit attaches to any part of the Objections, they are hereby overruled in their entirety. CERTIFICATION OF REPRESENTATIVES Pursuant to authority vested in the undersigned by the National Labor Relations Board, It is hereby certified that Local 385, Amalgamated Meat Cutters and Butcher Workmen of America, AFL-CIO has been designated and selected by a majority of the employees of the above-named Employer, in the unit herein involved, as their representative for the purposes of collective bargaining, and that pursuant to Section 9(a) of the Act, as amended, the said organization is the exclusive representative of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employ- ment and other conditions of employment. UNIT: All production and maintenance employees of the Employer at its Lewiston, Maine plant including shipping and receiving employees, but ex- cluding all office clerical employees, professional employees, farm supervisors, laboratory employees, salesmen, foremen, assistant foremen, floor ladies, pick up crews, truck drivers, guards, watchmen and supervisors as defined in the Act." 5 The undersigned has arrived at the same conclusion concerning the request for a hearing on the instant Objections-see last paragraph thereof-and hereby denies the request. In addition to the foregoing the evidence reveals that the sample ballot (on (1) the notices of election for December 11, 1962, and (2) the notice of election for February 19, 1963) was worded in both French and English. The parties stipulated to the effect that the purpose of having the sample ballots on the notices printed in French and English was because some of the employees read with greater facility in French than in English and that there was a percentage of the employees who spoke English but spoke with a greater facility in French. It is the Board's longstanding policy, uniformly upheld by the courts, that it will deem the Regional Director's determination in consent elections of this character to be final in the absence of fraud, misconduct, or such gross mistakes as imply bad faith on the part of the Regional Director, even though the Board might have reached a different conclusion.? Using the foregoing criteria in my consideration of the Regional Director and Acting Regional Director's acts and conduct relating to the processing of the election objections and related actions, I have considered all the evidence in this case. Concerning the Refusal To Allow Access to Evidence, or To Have a Formal Hearing It is undisputed that the Regional Director's (and Acting Regional Director's) selected type of investigation and determination did not accord the Respondent the onportunity to see witness statements and investigator reports, nor did it accord the Respondent the right to a formal or informal hearing. 7 Sumner Sand & Gravel Company, 128 NLRB 1368. HILLCREST POULTRY INDUSTRIES, INC. 1229 It is noted that the consent-election agreement executed by the parties provided "the method of investigation of objections and challenges, including the question whether a hearing should be held in connection therewith, shall be determined by the Regional Director , whose decision shall be final and binding ." In other litigated cases this contractual provision has been consistently held to constitute an ap- propriate waiver of a right to a formal hearing. It follows also that the contractual provision constitutes a waiver of a right to a type of investigation or determination other than the one selected and used by the Regional Director (or Acting Regional Director). Absent other evidence to reveal arbitrary or capricious action on the part of the Regional Director or Acting Regional Director , it cannot be said that the mere refusal of the Regional Director (or Acting Regional Director) to accede to Respondent's arguments and requests and to grant the Respondent a hearing (formal or informal ), or to grant the Respondent access to the evidence in the Regional Director's (or Acting Regional Director's) files, constitutes an arbitrary or capricious act, or a denial of due process.8 In regard to the matter of access to the evidence , the evidence does not reveal that Respondent secured permission from the proper authorities to grant the Regional Director (or Acting Regional Director ) the right to make evidence in his files available to Respond- ent. Assuming that the Regional Director ( or Acting Regional Director ) on his own could have secured such permission , absent evidence to establish that the Regional Director (or Acting Regional Director) in his evaluation of his problems acted arbitrarily and ca- priciously, such refusal to accede to Respondent 's request would not in itself constitute an arbitrary and capricious act It seems obvious that the making available of employee statements, or reports concerning the same, would have an inhibitory effect on employees giving statements in an ex parte investigation and thus result in the hampering of the Board use of different types of investigating procedures Thus, in and of itself , it does not follow that the refusal to grant a Respondent access to such evidence constitutes an arbitrary or capricious act. (Of. Hilton Credit Corporation, 187 NLRB 56 ) The Board's Rules and Regulations with respect to the restrictions on the Regional Director ( or Acting Regional Director ) making such evidence available is herein set out: SEC 102 118 Same ; Board employees prohibited from producing files, records eta, pursuant to subpena ad testificandum or subpena duces tee-um, prohibited from testifying in regard thereto -No regional director , field examiner, trial examiner, attorney, specially designated agent , general counsel , member of the Board , or other officer or employee of the Board shall produce or present any files, documents , reports, memoranda , or records of the Board or testify in behalf of any party to any cause pending in any court or before the Board or any other board , commission , or other administrative agency of the United States, or of any State , Territory, or the District of Columbia with respect to any information , facts , or other matter coming to his knowledge in his official capacity or with respect to the contents of any files, docu- ments, reports, memoranda , or records of the Board , whether in answer to a subpena, subpena daces tecum, or otherwise, without the written consent of the Board or the chairman of the Board if the official or document is subject to the supervision or con- trol of the Board ; or the general counsel if the official or document is subject to the superivsion or control of the general counsel. Whenever any subpena ad testificandum or subpena daces tecum, the purpose of which is to adduce testimony or require the production of records as described hereinabove , shall have been served upon any such persons or other officer or employee of the Board ,-he will , unless otherwise expressly directed by the Board or the chairman of the Board or the general counsel, as the case may be , move pursuant to the applicable procedure , whether by petition to revoke, motion to quash , or otherwise, to have such subpena invalidated on the ground that the evidence sought is privileged against disclosure by this rule : Provided, After a witness called by the general counsel has testified in a hearing upon a complaint under section 10(c) of the Act, the respondent may move for the production of any state. ment of such witness in possession of the general counsel , if such statement has been reduced to writing and signed or otherwise approved or adopted by the witness Such motion shall be granted by the trial examiner If the general counsel declines to fur- nish the statement, the testimony of the witness shall be stricken Contrary to Respondent's contention I do not find that the Respondent was denied "due process" by the procedures used by the Regional Director or Acting Regional Director. See International Ladies' Garment Workers' Union , AFL-CIO, 142 NLRB 353 , wherein the Board adopted the findings , conclusions , and recommendations of the Trial Examiner. The Trial Examiner had set forth in his report the following statement: In any event , Respondent 's contention with respect to the investigation , like its contention with respect to its right to a hearing , misconceives the nature and purpose 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is nothing to reveal that the type of investigations and determinations by the Regional Director (and Acting Regional Director ) was not one in which all necessary evidence was secured , in which all necessary witnesses were interviewed, in which all questions that could be asked on direct and cross-examination were asked the witnesses, in which all known indicia of credibility were not available and considered, nor in which all possible arguments were not considered, nor in which all evidence was not considered . Thus the mere fact that the investigations and determinations by the Regional Director (and Acting Regional Director) were of the type in which the Respondent was not afforded a formal hearing , an informal hearing, the right to examine and cross-examine witnesses , or access to the evidence (statements, affidavits, and reports ), in and of itself, cannot be said to constitute arbitrary or capricious action. Other Alleged Acts and Problems To determine whether the Regional Director's (or Acting Regional Director's) refusal to grant a hearing, or to grant access to the evidence in his files constituted an arbitrary or capricious act, the other alleged arbitrary and capricious acts must be considered , as well as the alleged problems that existed in connection with the investigation and determination of the objections . These alleged acts and alleged problems are set out in the following sections of this report. Alleged Language or Communication Problem The evidence reveals ( 1) that the notices of elections were printed in English and French and (2) that some of the employees read with greater facility in French than in English and that there was a percentage of the employees who spoke English but with a greater facility in French . The Respondent's contention is that it had no way of knowing whether or not because of language barriers or difference that some or all of the employees involved in the investigation might have misinterpreted the facts. The foregoing at the most reveals that a question existed in Respondent's mind as to the reliability of the evidence relied upon by the Acting Regional Direc- tor or Regional Director . It does not establish in fact, that as to the evidence relied upon by the Regional Director or Acting Regional Director , that a language or com- munication problem existed to such an extent that reliance upon the type of investiga- tion and determination utilized constituted an arbitrary or capricious act. In this connection Respondent argues that the Regional Director 's finding of an element of unreliability because of language problems as to evidence given by a witness in support of Respondent 's objection, contrasted with the Acting Regional Director's failure to find such unreliability because of language problems as to evidence given by witnesses in support of the Union's objections, reveals an obvious inconsistency in judging the parties' objections In the absence of evidence as to degree or extent of the credibility or language problems that the Acting Regional Director and Regional Director had before them in their consideration , I do not find that the foregoing evidence reveals that the Acting Regional Director or Regional Director acted in an arbitrary or capricious manner in their credibility or factual determinations. of a representation proceeding Such proceeding is not "contentious litigation, not even litigation , but investigation. It is made on behalf of the Board by members of its staff. The outcome is merely a certification of a bargaining representative " N.L R B v. Botany Worsted Mills , 133 F. 2d 876 , 882 (C A. 3 ), cert denied 319 U.S. 751. The proceeding is not "adversary " (N.L.R B v National Mineral Company, 134 F. 2d 424 , 426 (C A 7), cert denied 320 U S 753 ), and no action is taken against anyone . Indeed , many courts have observed that an employer has "little if any voice or interest" in such proceeding. Foreman & Clark, Inc. v. N L R B , 215 F. 2d 396, 406 (C.A. 9 ), cert. denied 348 U S. 887.15 It is therefore clear, and I find , that the denial of access to Respondent of the information obtained by the Board investigator in the course of his investigation did not constitute a denial of due process 16 15 Deleted by Trial Examiner Stone 16 Compare cases holding that statements of witnesses for the Government must be made available to counsel for purposes of cross-examination but only after the wit- nesses testified at the hearing . See, e g, Chambers Manufacturing Corporation, 124 NLRB 721, enfd 278 F. 2d 715 , 716 (C A 5 ) ; The Raser Tanning Company v. N.L.RB., 276 F 2d 80, 83 ( CA. 6), cert. denied 363 US. 830 HILLCREST POULTRY INDUSTRIES, INC . 1231 Alleged Inconsistent Credibility Determination The Acting Regional Director in his January 18, 1963, report on objections as to those objections involving credibility determination set forth the effect of the state- ments of the employee witnesses, and the effect of statements of Respondent's su- pervisors. He further set forth the basis of his credibility determination. The Re- spondent contends that the Acting Regional Director made his determination on the basis that the employee-witnesses testified to incidents and that the Respondent's representatives made bare denials. The Acting Regional Director's report set forth a statement of the credited facts. He then stated in the report the following: "The employer's representatives (Santamingo, Begos, and Breton) all denied making any of the above statements. However, the undersigned credos the employee-witnesses over the bare denials, does not believe that the above episodes were invented by the several employees" and he found the incidents to have in fact occurred and to constitute objectionable conduct. The Acting Regional Director thus set out his basis for determining the credibility of the witnesses. There is nothing to show that the Acting Regional Director overlooked or failed to consider any indicia of credibility that existed, nor is there any evidence to reveal that any other method of investigation would reveal addi- tional indicia of credibility. Under such circumstances I do not find that the Acting Regional Director acted arbitrarily or capriciously in his handling of credibility determination. Alleged Improper Finding In his report on objections issued on January 18, 1963, the Acting Regional Director found merit to objection No. 3 on the basis that the conduct of employer's representatives constituted interrogations, threats of reprisals, withdrawal of benefits, and intimidation. The Respondent in his brief appears to attack the Acting Regional Director's finding as to an incident in which the Acting Regional Director found the conduct to constitute intimidation. Respondent's brief states that the event under the Acting Regional Director's version did not appear to constitute any kind of viola- tion. The Acting Regional Director's report in effect set forth that the Employer's foreman ciiticized an employee's work performance and took the employee to the personnel manager, that the foieman told the employee she had not done her work properly and that he could fire her, that the foreman then asked the employee, known to the employer as a designated union committee member, to give the Company a chance, that the foreman spoke of benefits given by the Company and denied that the benefits were because of the Union's organizational efforts. Considering the foregoing, I do not find that the Acting Regional Director in his finding acted arbitrarily or capriciously. Alleged Inconsistent Handling The Regional Director's report on objections and certification of representatives issued on March 29, 1963, concerned the Respondent's objections to the election on February 19, 1963. These objections were directed toward alleged statements by the Union and employees relative to benefits and conditions in union plants, and to an alleged threat by the union representative to an employee to the effect that she would lose her job if she did not vote for or join the Union. The Regional Director considered the statements as to benefits in connection with a union cir- cular that was issued prior to the election, and found that the union circular cor- rected or dispelled such prior inaccurate wage comparisons as may have been made. I do not find that the problem involved was comparative with the alleged intimidation, interrogation, threats of reprisals, or withdrawals of events found by the Acting Regional Director in his report on objections dated January 18, 1963. As to those events the facts related in the report do not reveal any Respondent's actions which dispelled the effect of such conduct. In this connection Respondent argues in his brief that there is nothing in the report on objections to reveal that the Regional Director or Acting Regional Director gave any weight to statements in a speech made by the employer. These statements according to the following excerpt from the brief 9 were as follows: "This company is going to continue to do the right thing, regardless of whether the Union gets in here or doesn't get in here. We intend to abide by the law in every respect . and, above all, remember this: THAT THIS COM- PANY IS GOING TO CONTINUE TO DO THE RIGHT THING, AND I PERSONALLY AM GOING TO SEE THAT IT DOES " 9I do not find evidence of the same in the record 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assuming that the statement of Respondent's president was available to and a part of the Regional Director's or Acting Regional Director's evidence, I do not find that the failure of the Regional Director or Acting Regional Director to accord it the same weight or consideration as clarifying or dispelling matter as the union circulars (pertaining more to the specific matter to be dispelled) reveals arbitrary or capricious action. I do not find or conclude that the Regional Director's or Acting Regional Director's actions in the handling of various objections con- stitutes evidence of an arbitrary or capricious nature. The Effect of Respondent's Arguments Made to the Regional Director Prior to the issuance of the January 18, 1963, report on objections, Respondent requested a formal hearing on the objections. After the issuance of the aforesaid report, Respondent, several days after January 29, 1963, requested a formal hearing or access to the evidence against it. At that time the Respondent argued that he did not know the evidence against it, and that as a matter of policy he should have a formal hearing or access to the evidence against it. After the election on Febru- ary 19, 1963, the Respondent filed its objections and requested a formal hearing on its objections. In view of the fact that the evidence does not establish that problems existed to such an extent as to reveal that a type of investigation other than the one utilized by the Regional Director was necessary, I do not see that Respondent's arguments for a formal hearing or access to the evidence, and the Regional Director's refusal to accede to such an argument reveals arbitrary or capricious action on the part of the Regional Director (or Acting Regional Director).10 Conclusions Considering the foregoing and all of the evidence, I conclude and find that the evidence does not establish that the Acting Regional Director or Regional Director have acted, in any instance, in connection with their processing of the representation case (Case No. 1-RC-7206) in an arbitrary or capricious manner. To hold that Respondent was entitled to access to the evidence or to a formal or informal hearing in the instant case would allow every party to a consent-election agreement of this nature, by charging arbitrariness, and capriciousness, or similar actions to nullify and deliberately ignore the binding commitments embodied in the consent agreement, would open the door to subterfuges for hampering and delaying a final determination of a bargaining representative; and would tend to defeat, rather than effectuate, the policies of the Act." In this connection, contrary to Respondent's contention, I do not see that the court in the Saxe-Glassman case 12 expressly held open the question as to a Respondent's right to access of evidence in this type of case. As I read the court's decision it recited procedural steps wherein the Respond- ent had failed to procedurally raise a point for the court's consideration. The court's decision, as a whole appears to support the decision herein. Nor do I find that the court decision in the Trancoa case 13 is applicable to the instant situation. The Trancoa case did not involve a consent-election agreement and thus does not touch upon a situation where the right of review has been limited by the parties. The Respondent has not established fraud, misconduct, or such gross mistakes as imply bad faith, arbitrary, or capricious action on the part of the Regional Director or Acting Regional Director. In accordance with Board policy, I therefore find that the Acting Regional Director and Regional Director's determinations, findings, and orders are final and binding as to the report on objections (dated January 18, 1963) and as to the report on objections and certification of representative (dated March 29, 1963).14 I thus find, within the meaning of the Act, that in connection with the election held on February 19, 1963, that the Union was certified on March 29, 1963, as having "In connection with the foregoing it is noted that when Respondent made its requests several days after January 29, 1936, the January 18, 1963, report on objections (Case No 1-RC-7206) had been issued, describing the time of the alleged incidents, the names of supervisors involved, and a factual statement of what occurred It is also noted that Respondent's request for a formal hearing as to the objections to the February 19, 1963, election concerned its own objections 11 See Parkhurst Manufacturing Company, Inc, 136 NLRB 872, enfd 317 F 2d 513 (C.A. 8), and cases cited in the Board and court decisions 11 N.L R B. v. Saxe-Glassman Shoe Corporation, 201 F. 2d 238 (C A. 1) 11 N.L It B v Trancoa Chemical Corp , 303 F. 2d 456, setting aside 133 NLRB 791. 14 Parkhurst Manufacturing Company, Inc., supra. HILLCREST POULTRY INDUSTRIES, INC. 1233 been designated and selected by a majority of employees of Respondent in the agreed appropriate bargaining unit on February 19, 1963, for the purposes of collective bargaining and as the exclusive representative of all the employees in the agreed appropriate bargaining unit for the purpose of collective bargaining. It is undisputed that the Union made request to the Respondent for negotiation concerning a contract covering the employees in the agreed appropriate unit on or about March 12, 1963, and that Respondent on or about March 13, 1963, refused to bargain collectively with the Union and has continued to refuse to so bargain at all times thereafter, including March 29, 1963, and thereafter. In connection with the Union's request for collective bargaining made on or about March 12, 1963, the Respondent, by virtue of the certification of the Union (as the exclusive representative of the employees in the stipulated approved bargaining unit) for purposes of collective bargaining, was obligated to bargain collectively with the Union. Its continued refusal to so bargain, after March 29, 1963, constitutes a refusal to bargain within the meaning of Section 8(a)(1) and (5) of the Act.15 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit. It will therefore be recommended that the Respondent, upon request, bargain collec- tively with the Union as such representative, and, in the event that an understanding is reached, embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the following is made: CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters and Butcher Workmen of North America, Local 385, AFL-CIO, is a labor organization within the meaning of the Act. 2. Hillcrest Poultry Industries, Inc., is engaged in commerce within the meaning of the Act. 3. All production and maintenance employees of the Employer at its Lewiston, Maine, plant, including shipping and receiving employees, but excluding all office clerical employees, professional employees, farm supervisors, laboratory employees, salesmen, foremen, assistant foremen, floorladies, pickup crews, truckdrivers, guards, watchmen, and supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Amalgamated Meat Cutters and Butcher Workmen of North America, Local 385, AFL-CIO, was on February 19, 1963, and at all times since has been, the ex- clusive representative of all employees in the aforesaid appropriate units for the purposes of collective bargaining within the meaning of the Act. 5. By refusing on March 29, 1963, and thereafter, to bargain collectively with the above-named Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (5) of the Act 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. "The General Counsel at the hearing stated that Respondent has refused to bargain in the face of the certification The case was litigated on this basis See Trinity Steel Com- pany, Inc, 103 NLRB 1470; also cf. Alexander Manufacturing Company, 110 NLRB 1457; Milwaukee Electric Tool Corporation, 112 NLRB 1135; and Glenn Koennecke, d/b/a Sunset Lumber Products, 113 NLRB 1172. 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER 16 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended 17 that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Amalgamated Meat Cutters and Butcher Workmen of North America, Local 385, AFL-CIO, as the exclusive representative of the employees in the appropriate bargaining unit herein set out: All production and maintenance employees of the Employer at its Lewiston, Maine, plant, including shipping and receiving employees, but excluding all office clerical employees, professional employees, farm supervisors, laboratory employees, salesmen, foremen, assistant foremen, floorladies, pickup crews, truckdrivers, guards, watchmen, and supervisors as defined in Section 2(11) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Upon request, bargain collectively with Amalgamated Meat Cutters and Butcher Workmen of North America, Local 385, AFL-CIO, as the exclusive repre- sentative of the employees within the appropriate units described above with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its premises in Lewiston, Maine, copies of the attached notice marked "Appendix A." 18 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the First Region, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.19 11 In the event that this Recommended Order be adopted by the Board, the word "Order" shall be deemed substituted for the words "Recommended Order " iz The word "ordered" shall be substituted for the word "recommended." In the event that this Recommended Order be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals , the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 11 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing , within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Amalgamated Meat Cutters and Butcher Workmen of North America, Local 385, AFL-CIO, as the ex- clusive representative of the employees in the bargaining unit described below. THE J. S. DILLON & SONS STORES CO., INC. 1235 WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization , to form, join, or assist any labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL bargain collectively, upon request , with Amalgamated Meat Cutters and Butcher Workmen of North America , Local 385, AFL-CIO, as the ex- clusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining units are: All production and maintenance employees of the Employer at its Lewis- ton, Maine, plant, including shipping and receiving employees, but excluding all office clerical employees, professional employees , farm supervisors, laboratory employees , salesmen, foremen, assistant foremen, floorladies, pickup crews, truckdrivers , guards, watchmen, and supervisors as defined in Section 2 (11) of the Act. HILLCREST POULTRY INDUSTRIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street , Boston 8, Massachusetts, Tele- phone No. Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions. The J. S. Dillon & Sons Stores Co., Inc. and District 50, United Mine Workers of America . Case No. 17-CA-2113. October 28, 1963 DECISION AND ORDER On July 15, 1963, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. He also found that the Respondent had not engaged in other unfair labor practices and recommended that the complaint be dismissed as to them. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 [Members Leedom, Fanning, and Brown]. The Board has reviewed, the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- 144 NLRB No. 116. 727-083-64-vol. 144-79