Gold Kist Poultry Growers

772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cotton Producers Association, d/b/a Gold Kist Poul- try Growers and Retail Wholesale and Department Store Union, AFL-CIO, and Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO. Case 10-RC-8310 March 2, 1971 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, BROWN , JENKINS, AND KENNEDY Pursuant to Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on July 22, 1970, under the direction and supervision of the Regional Director for Region 10, among the employees in the stipulated unit. At the conclusion of the election, the parties were furnished a tally of ballots which showed that of approximately 592 eligible voters, 86 cast ballots for the Petitioner, 156 cast ballots for the Intervenor, and 262 cast bal- lots against the participating labor organizations. There was one void and no challenged ballot. There- after, on July 27, 1970, the Intervenor filed timely objections to conduct affecting the results of the elec- tion. Pursuant to Section 102.69 of the National Labor Relations Board Rules and Regulations, the Regional Director conducted an investigation of the issues raised by the objections and on September 23, 1970, issued and duly served upon the parties his Report on Objections, finding that Objections 1 and 3 were with- out merit and recommending that they be overruled. The Regional Director further found, however, that Objection 2 had sufficient merit to warrant setting the election aside. The Employer filed exceptions to the Regional Director's disposition of the issues raised by Objec- tion 2 and his recommendation that a second election be held, and a brief in support thereof. No exceptions were filed by the Petitioner or the Intervenor. Upon the entire record in this case, including the exceptions and brief, 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 or- ganizations 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. 4. The parties stipulated, and we find, that the fol- lowing employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(c) of the Act: All production and maintenance employees, in- cluding shipping employees employed by the Employer at it's Boaz, Alabama, poultry proc- essing plant, but excluding all office clerical em- ployees, professional employees, technical employees, salesmen, live poultry haulers, and chicken catchers, guards, and supervisors as de- fined in the Act. The Board has considered the Regional Director's Report and the Employer's exceptions thereto, and, for reason hereinafter set forth, hereby adopts the Regional Director's findings and recommendations.' Objection 2 in essential part states: "a notice was posted on the bulletin board advising employees they could get a raise, but the Union had petitioned for an election, therefore they could not give it." It appears that in an earlier election held in Feb- ruary 1969 a majority of employees voted against un- ion representation. Notwithstanding the vote in the earlier election, organizational efforts continued and on June 29, 1970,2 the present petition for an election was filed. The Regional Director's investigation shows that on July 3 the Employer posted a notice on the plant bulletin board, purportedly to keep employees abreast of developments. This notice informed them of the Employer's receipt on June 30 of the instant petition and that the Employer had also learned, on the very next day, that a plant in the area had increased its employees' base rate. The notice went on to remind the employees that in a letter to employees dated March 30, the Employer had promised: to give to you the best possible benefits consistent with the sound operation of the plant and bene- fits equal to or better than any other plant in the area. The notice went on to state: Consistent with our [March 30] promise, we would at this time review our own wage scale to determine what increases, if any, we should make to carry out our third promise. However, our At- torneys have advised us that while the election is pending and until the election is held, we should not consider making any wage increases since we want to avoid even the appearance of attempting to influence your decision in the election con- cerning representation for purposes of collective bargaining and, further, we do not know what position a bargaining agent would take should ' As no exceptions were taken to the Regional Director's findings and recommendations regarding Objections I and 3, these findings and rec- ommendations are adopted, pro forma 2 All dates are 1970 unless otherwise stated. 188 NLRB No. 122 GOLD KIST POULTRY GROWERS 773 you vote to have one. Likewise, we do not make any promises or predictions to you at this time about any particular wage increases. After reiterating its strong opposition to the Unions, the Employer advised the employees that it would undertake to answer any questions about the matter the employees might have. In this context, the Employer argues that it could not remain silent because such silence would have provoked employee inquiries and created the risk that any answer given could be misunderstood. But we can see neither the urgency nor necessity for bringing the matter of a wage increase to the attention of the employees at this particular time. It is clear that the Employer had no fixed practice which obligated it to increase wages merely in the circumstance of a wage increase being granted by a competitor. As the Employer conceded, it had no formula to follow with respect to wage increases and the amount of a raise, if any, was a matter resting entirely within its discre- tion. Thus, there could have been no assurance at the time the Employer posted its July 3 notice that any raise was forthcoming because of the competitor's raise in base rates. Although we agree with the Regional Director's results, we would not characterize the Employer's sit- uation as a "campaign dilemma." There is nothing to indicate that the employees had become aware of the competitor's wage increase so as to raise questions with respect thereto. But had the matter in some way come to the employees' attention and elicited in- quiries, the Employer, in light of its discretionary poli- cy with respect to wage increases, could readily and simply have informed the employees that it had the matter under consideration. Here, however, the Em- ployer initiated discussion of the wage increase and purposefully aroused the employees' expectations and conveyed the impression that, but for the presence of the Unions, the employees would have received a wage increase. Moreover, by adding that it did not know what position a bargaining agent would take should the employees vote for one, the Employer en- gendered the fear that the selection of a bargaining agent might well result in no wage increase at all, and thus led the employees to believe that as assurance of ultimately receiving a wage increase, it might be better to reject the Unions. In these circumstances, we can- not avoid the conclusion that the Employer's conduct was a clear intrusion into the employees' right to choose a bargaining representative and by engaging in such conduct the Employer improperly interfered with the election. Accordingly, we shall set the elec- tion aside and direct that a new one be conducted. ORDER It is hereby ordered that the election conducted herein on July 22, 1970, be, and it hereby is, set aside. [Direction of second election I omitted from pub- lication.] 3 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc., 156 NLRB 1236, N LR B v Wyman-Gordon Company, 394 U S 759 According- ly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 10, within 7 days after the date of issuance of the Notice of Second Election by the Regional Director . The Regional Director shall make the list available to all parties to the election No exten- sion of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.