Packerland Packing Co., Inc.

PACKERLAND PACKING COMPANY 653 Packerland Packing Company, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Petitioner. Case 30-RC-1224 September 18, 1970 DECISION AND CERTIFICATION OF REPRESENTATIVE 4. The parties stipulated, and we find, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Employer at its Green Bay, Wisconsin, plant, excluding office clerical employees, truckdrivers, professional employees, guards and supervisors as defined in the Act. BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on June 12, 1970, under the direction and supervision of the Regional Director for Region 30 among the employees in the appropriate unit. At the conclusion of the election, the parties were furnished a tally of ballots which showed that, of approximately 300 eligible voters, 255 cast ballots, of which 200 were for the Petitioner, 27 were for the Independent Employees of Packerland Packing, and 26 were against union representation, with 2 challenged ballots. Thereafter, the Independent Employees of Packerland Packing filed timely objec- tions to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, the Regional Director conducted an investigation and, on July 1, 1970, issued and duly served on the parties his attached Report in which he recommended that Objections 1 and 2 be sustained, that Objection 3 be overruled, that the election be set aside, and that a second election be directed. Thereafter, the Employer filed timely exceptions to the Regional Director's Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner and the Intervenor are labor organizations claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of the employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 5. The Board has considered the Intervenor's objec- tions, the Regional Director's Report, and the Employ- er's exceptions thereto, and hereby adopts the Regional Director's findings and recommendations only insofar as they are consistent with the findings herein. In its Objection 1 the Intervenor asserted that the Employer's letter to its employees, dated June 5, 1970, interfered with the election for a number of reasons. The Regional Director found such interfer- ence because of the concluding statement: "If you vote for the Independent Union, your vote will be wasted because we cannot and will not bargain with the Independent Union of Packerland Packing Compa- ny." The Regional Director apparently construed this as an anticipatory refusal to bargain with the Interve- nor. However, we do not agree that this construction is justified from the entire context. Thus, the letter is not long, and it sets out something of the dispute concerning the treasury and proper officers of the Independent, rumors concerning unavailability of min- ute books, and litigation seeking an election of officers. Under these circumstances, the Employer's statement that it "cannot and will not" bargain with the Interve- nor seems to us to be a statement of factual inability to carry out any bargaining obligation that might arise as a result of the election if the Intervenor were selected. Furthermore, the entire letter is pre faced by the following paragraph: So far we have tried to show you why it would be a bad mistake for you to vote Amalga- mated and how Amalgamated would threaten our future and your jobs. Now we have to tell you why we are recommending that you "dump" the Independent Union and why you should vote NO UNION. Thus, from the face of the letter, as well as from the entire context of the Employer's preelection cam- paign, it is clear that the Employer was opposing both labor organizations and was not saying it would bargain with one union but not with the Intervenor. We have considered an analogous situation in which we rejected the contention that opposition against both unions will support objections to the election 185 NLRB No. 97 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed by one of them where the other won decisively.' There we stated:' The Intervenor's exceptions . . . allege that the Employer's speech was coercive per se, that under Board practice an election must be set aside [when such conduct is shown], and that the election in the instant case should be set aside because the Employer's misconduct, although directed against both Unions, might have unequally affected the Intervenor's adher- ents among the employees. [Emphasis supplied.] In the instant situation, to, the Intervenor claims that although the Petitioner was designated by a very substantial majority of the voters, the election should be set aside because the Employer's statements of opposition to both unions and preference for neither could have had an unequal impact among the Interve- nor's adherents. As in the Showell case, we reject the rationale and find that the Intervenor's objection does not raise substantial issues which require that the election be set aside. Objection 2 dealt with meetingslon company time called by the Employer with 150 to 200 employees, within 24 hours of the election, for the purpose of informing the employees that a competitor of Packer- land whose production employees were represented by the Petitioner in the instant case, was in financial trouble. Although the meetings were anti-Petitioner in tenor, and the Petitioner won the election in spite of these meetings, the Regional Director found that the Peerless Plywood' rule is an absolute prohibition against such meetings within 24 hours of the election, and speculation as to the subjective impact, or lack thereof, of the speeches on the employees has no proper relevance. We do nbt believe we are committed to so mechani- cal an application of our Peerless Plywood rule as the Regional Director assumed. In Showell Poultry Co., supra, we overruled an objection based upon a coercive employer speech where the petitioner had won the election decisively, where the intervenor filed the objection, and where the speech had been directed against both unions equally. We said in that case: It is well established that the Board will not set aside an election because of employer interfer- ence where the only union involved wins the election, because to do so would permit the wrongdoer to profit by its illegal acts. The Region- al Director found this policy applicable to the instant case where two unions were involved, and recommended that the objections be over- Showell Poultry Co, 105 NLRB 580 ' Id at 581-582 107 NLRB 427 ruled, and the Petitioner, which had won the election decisively, be certified. We find, for the reasons relied upon by the Regional Director, that the Intervenor's objec- tions and exceptions do not raise material and substantial issues with respect to the election. This rationale has direct application here. The "speech," if indeed it was such, can only be regarded as an attack on the Petitioner, not the objecting Intervenor. To uphold the objection of the Intervenor under these circumstances not only does not effectuate the purposes of the Peerless Plywood rule, but further- more invites collusion in future cases. It suggests to any employer, who favors one competing union whose chances in the election do not appear to be bright, deliberately to violate the Peerless Plywood rule in the assurance that the favored minority union can successfully file objections and be given a second opportunity to woo the voters. We therefore overrule Objections 1 and 2, in addi- tion to 3, which the Regional Director recommended be overruled. Accordingly, as the tally shows the Petitioner has obtained a majority of the valid ballots cast, we shall certify it as the collective-bargaining representa- tive of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL- CIO, has been designated and selected by a majority of the employees in the unit found appropriate herein, as their representative for the purposes of collective bargaining and that, pursuant to Section 9(a) of the Act, the said labor organization is the exclusive repre- sentative of all employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. REPORT AND RECOMMENDATION OF OBJECTIONS TO CONDUCT AFFECTING RESULTS OF ELECTION Pursuant to a petition filed on March 5, 1970, and a Stipulation for Certification Upon Consent Election execu- ted by the above parties and the Independent Employees of Packerland Packing, hereinafter called the Intervenor, and approved by the Regional Director on April 27, 1970, an election was conducted under my supervision on June 12, 1970, among employees in the following unit: All production and maintenance employees of the Employer at its Green Bay, Wisconsin plant, excluding office clerical employees, truckdrivers , professional employees, guards and supervisors as defined in the Act. PACKERLAND PACKING COMPANY The results of the election set forth in the tally of ballots served on the parties on June 12, 1970, show that of approximately 300 eligible voters, 200 cast ballots for the Petitioner, 27 for the Intervenor, and 26 against the participating labor organizations. There were two challenged ballots. On June 19, 1970, the Intervenor filed timely objections to conduct affecting the results of the election, a copy of which was duly served on the Employer and Petitioner. Acting pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the Regional Director has investigated the issues raised by the objections and hereby reports as follows: THE OBJECTIONS The Intervenor filed the following objections: 1. During the period preceding the election, Packer- land Packing Co., by its officials Betty Frankenthal, and Charles E. McCarthy, Vice President, Packerland Packing Co., (hereinafter referred to as Employer) in a letter sent to each employee on June 5, 1970, illegally made promises and threats and benefits to its employees, which Intervenor had no adequate oppor- tunity to refute, including but not limited to:' A. The Employer promised peace and security if employees voted against Intervenor, thereby stat- ing if employee voted for the Intervenor his vote would be wasted B. The Employer stated if the Intervenor won the election "we cannot and will not bargain with the Independent Union." C. The Employer alleged Intervenor's officers were corrupt and should not be trusted. D. The Employer alleged Intervenor incapable of administration of its internal matters, to the alleged detriment of employees. 2. During the period preceding the election, the Employer, by its official Betty Frankenthal, in a speech to all employees on June 12, 1970, within hours of the election, illegally made promises and threats and misrepresented and misstated facts which intimidated and misled employees to vote against Intervenor and Intervenor had no opportunity to refute, included but not limited to; A. The Employer did not know who the officials were of the Intervenor. B. That Employer would not bargain with the Intervenor after election if Intervenor won. C. That voting for the Intervenor was "silly." D. Attendance to said speech was compulsory, captive audience implied with threat of reprisal for anyone leaving the speech or being inattentive. 3. The Employer and the Petitioner, by their total course of conduct, restrained and coerced the employ- ees. The interplay between the Employer's letter dated June 5, 1970, and speech on June 12, 1970, and the total absence of any campaign by the Petitioner was ' Letter dated June 5, 1970, Exhibit 655 the result of a joint scheme of or had the effect of undermining and discrediting the Intervenor influ- encing the employees to vote for the Petitioner. By these and other acts and conduct Employer and Petitioner, and each of them, undercut and undermined Intervenor as the choice of the employees, interfered with the rights of the employees, restrained and coerced them and prevented the employees from making a free choice in the election. The Petitioner's lack of a vigorous election campaign in and of itself based upon prior election campaigns, and Employer's lashing out at Intervenor in the last moments of said campaign conclusively produced a joint scheme between Employer and Petitioner THE INVESTIGATION Objection 1: This objection is based on the undisputed evidence that on June 5, 1970, the Employer sent a letter to all employees stating, in part, "If you vote for the Independent Union, your vote will be wasted because we cannot and will not bargain with the Independent Union of Packerland Packing Company." The entire letter is attached hereto and made a part hereof. The Board has consistently held that statements such as these which declare an anticipatory refusal to bargain, should a labor organization be successful in an election, destroy the laboratory conditions in which the Board must hold its elections. Such declarations clearly convey to the employees the Employer's conviction that it would be futile for the employees to designate the Intervenor as their bargaining agent, thereby preventing the employees' expres- sion of a free choice in the election. Dal-Tex Optical Compa- ny, Inc., 137 NLRB 1782; The Great Atlantic and Pacific Tea Company, Inc., 124 NLRB 329; Lloyd A. Fry Roofing Company, Incorporated, 116 NLRB 1300. Amalgamated contends that this objection is meritless; that the June 5, 1970, letter must be viewed in total context together with all other campaign literature; and that the past history of anti-Amalgamated activities by the Employer and the continuous course of bargaining of the Employer with Intervenor in past years reveals the June 5 letter to be a sham, easily recognized as such by the employees; and finally, that in any event, the letter did not affect the results of the election. Although these contentions are not without persuasive force, I conclude nonetheless that the position advanced by Amalgamated is at best speculative I find that the June 5 letter destroyed the laboratory conditions required for the conduct of a Board election and that accordingly the results of the election should be nullified. On the basis of the foregoing, I find merit in Intervenor's Objection 1. Objection 2: Intervenor alleges that on June 12, 1970, shortly before the polling began, plant superintendent Robert Rotter and Betty Frankenthal, an agent of the Employer, conducted captive-audience meetings of employees during working time and engaged in preelection campaigning. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Investigation reveals that during the morning of June 12, 1970, Rotter and Betty Frankenthal held several meet- ings with employees in various departments during which she read verbatim to them a lien recently filed in a local court by four area banks against Liebmann Packing, an area employer. Miss Frankenthal indicated to the employees that Liebmann Packing was in financial difficulties, adding that the same fate could befall the Employer in the future. There is some evidence that she urged employees to vote "No Union," and some evidence that she urged employees to vote against Amalgamated. The employees were instructed to attend these meetings by their supervisors and were paid for attendance. Each meeting was called to order by Rotter who instructed the employees to pay close attention to what Betty Franken- thal had to tell them . At least 150 to 200 employees attended such meetings, each of which lasted about 8 min- utes Intervenor did not submit, nor did the investigation elicit any evidence showing that Miss Frankenthal or any other company official, made any statements during these meetings as alleged in Intervenor's Objection 2, (A), (B), or (C). There is no dispute that each meeting took place on company time and on company property. It appears that the purpose of such meetings was to inform the employees that Liebmann Packing , a competitor of Packerland whose production employees are represented by the Petitioner, was in financial trouble. In various items of campaign material to the employees preceding the June 12, 1970, election, and in past elections the parties have repeatedly referred to the fact that the Petitioner represents Liebmann's production employees In Peerless Plywood Company, 107 NLRB 427, the Board held that campaign speeches relating to an election delivered to assembled employees by the employer on company time at which employee attendance is compulsory and within 24 hours of the election compel the nullification of the election . This rule applies equally to meetings conducted on a departmental basis. American Thermos Bottle Company, 107 NLRB 1570. The preelection speeches by Betty Frankenthal must be viewed in light of the entire campaign during which the Employer repeatedly urged employees to vote against Peti- tioner, and referred to possible economic consequences should the employees vote to be represented by Petitioner. Accordingly, it cannot be reasonably urged that these speeches were nonpartisan , Ottenheimer Bros. Mfg. Co., Inc., 109 NLRB 183, but rather that these speeches were intended to influence the employees' vote. The actual effect upon the voters is of course not material. Riblet Welding and Mfg. Corp., 112 NLRB 712; Rock Hill Printing & Finishing Co., 114 NLRB 836. Amalgamated contends that the total thrust of these election day meetings were anti-Amalgamated in tenor and that since Amalgamated won the election it is evident that these speeches had no effect on the results of the election. As with the situation regarding the June 5 letter, Amalgamated's contentions while persuasive are not conclu- sive of the issue. The manifest purpose of the Peerless Plywood rule is to prohibit certain kinds of campaigning. This is an absolute prohibition and speculation as to the subjective impact, or lack thereof, of the speeches on the employees has no proper relevance Accordingly, I reject Amalgamated's contentions in this regard , and for the reasons stated above, I conclude that there is merit to these portions of Objection 2. Objection 3: The Intervenor alleges that the Employer 's actions on June 5 and 12, 1970, together with a failure to campaign by the Petitioner, undermined the status of the Intervenor and interfered with the employees ' free choice. Investigation reveals that Petitioner did engage in preelection campaign- ing The Intervenor has failed to submit any evidence to show that the Employer and Petitioner engaged in a pre-arranged joint venture to interfere with the rights of the employees. I, therefore, find Objection 3 to be without merit. CONCLUSION AND RECOMMENDATION Having found that Intervenor's Objection 3 does not raise substantial and material issues with respect to conduct affecting the results of the election, it is recommended that this objection be overruled. Having further found that Intervenor's Objections 1 and 2 raise substantial and material issues with respect to the conduct of the election, it is recommended that these objections be sustained , that the results of the election conducted on June 12, 1970, be set aside, and that a rerun election be conducted. June 5, 1970 To All Employees: So far we have tried to show you why it would be a bad mistake for you to vote Amalgamated and how Amalgamated would threaten our future and your jobs Now we have to tell you why we are recommend- ing that you "dump" the Independent Union and why you should vote NO UNION. The Independent Union has many people claiming to be its officers We don't know who they are, do you? From the stories we hear, minute books are not available, treasuries are several and in dispute. There is litigation pending for an election of officers which has been pending for years, and who knows how many more years it will take before that issue is decided. This union has not brought about any stability of any kind for you or for us. No one really knows what this union is doing or - thinking. You do not need any union to work here and receive good paychecks and bonuses . The company has always done for you what it could and remain competitive and it will do so in the future. This company will keep its doors open for those people who want to work, be they employed here now or those many persons who have applications on file with us now. PACKERLAND PACKING COMPANY 657 If you vote for the Independent Union, your vote will be wasted because we cannot and will not bargain with the Independent Union of Packerland Packing Company. Very sincerely yours, Betty J Frankenthal Charles E. McCarthy Vice President VOTE NO UNION