Bona Allen, Inc.

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bona Allen, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, Petitioner. Case 10-RC-8199 April 30, 1971 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties, and approved by the Regional Director for Region 10 of the National Labor Relations Board on May 6, 1970, an election by secret ballot was conducted in the above-entitled pro- ceeding on May 28, 1970, under the direction and supervision of the said Regional Director. Upon the conclusion of the election, a tally of ballots was fur- nished the parties in accordance with the National La- bor Relations Board's Rules and Regulations, Series 8, as amended. The tally of ballots shows that there were approxi- mately 348 eligible voters and that 337 ballots were cast, of which 176 were for the Petitioner, 159 were against the Petitioner, and 2 were void. On June 5, 1970, the Employer filed timely objec- tions to the election. The Regional Director caused an investigation of the issues raised by the objections to be made and, thereafter, on July 23, 1970, issued and served on the parties his Report on Objections. In his report, the Regional Director found that the Em- ployer's objections do not raise any material or substan- tial issues affecting the results of the election. He, there- fore, recommended to the Board that the objections be overruled in their entirety, and that the Petitioner be certified as the exclusive bargaining representative of the employees involved. Thereafter, on August 3, 1970, the Employer filed timely exceptions to the Regional Director's Report on Objections, and a brief in support of its exceptions. The Employer requested the Board to set aside the results of the election conducted herein on May 28, 1970, and to direct that a second election be-held or, in the alter- native, to order a hearing on the objections. Having considered the matter, the Board on October 22, 1970, issued an Order Directing Hearing in the above-entitled matter to resolve the issues raised by Employer's Objections 1 and 3, and deferred ruling on Employer's Objections 2 and 4, pending the outcome of the hearing on Objections 1 and 3. Pursuant to the Board's Order, a hearing was held on November 17 and 18, 1970, and on December 16, 1970, the Hearing Officer issued and duly served upon the parties his Report and Recommendations on Objec- 190 NLRB No. 37 tions to Election. The Employer thereafter filed excep- tions and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 Union is a labor organization claiming to represent 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 purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding truck drivers employed by the Employer at its Buford, Georgia, operation, but excluding all office clerical employees, professional employees, buyers, salesmen, foremen, watchmen, guards and supervisors as defined in the Act. 5. The Board has considered the entire record in this case, including the Regional Director's Report on Ob- jections and the Employer's exceptions thereto and its brief in support thereof, the record in the hearing, the Hearing Officer's report and the Employer's exceptions thereto and brief in support thereof, and hereby adopts the Regional Director's recommendations as to Objec- tions 2 and 4 and the findings, conclusions, and recom- mendations of the Hearing Officer as to Objections 1 and 3. We find that Employer's exceptions raise no substantial and material issue of fact or law which would warrant reversing the Regional Director's findings and recommendations as to Objections 2 and 4 and we further find that they are without merit and do not warrant reversing the Hearing Officer's findings and recommendations as to Objections 1 and 3.t ' We do not agree with our dissenting colleague that the preelection conduct of employee Rufus Shelton created a general atmosphere of fear and coercion so as to render a free election impossible. Shelton was not an agent of the Petitioner and in all but one of Shelton 's exchanges with other employees, he addressed himself not to the election but to events that might follow the election and a union victory . Thus, it appears he was not threaten- ing employees with physical violence if they did not vote for the Petitioner but that such action might be taken if the Petitioner, having won the elec- tion, called a strike and the employees refused to honor the picket line. In the exchanges between Shelton and the few employees in question, the latter, as evidenced by their remarks to Shelton, indicated quite clearly that they did not seriously consider his comments to represent the Union's position, and that the incidents merely represented exchanges between in- dividuals of the kind frequently encountered in the milieu of the workplace. In these circumstances , we conclude that Shelton's conduct did not tend to destroy the atmosphere necessary to the employees' exercise of a free choice in the election. See Tunica Manufacturing Company, Inc., 182 NLRB No. (Cont.) BONA.ALLEN, INC. 217 Accordingly, as we have overruled all of the objec- tions and as the Petitioner has secured a majority of the valid ballots cast, we shall certify the Petitioner as the exclusive bargaining representative 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 the majority of the employees at the Employer's Buford, Georgia, operation in the unit found appropriate, as their repre- sentative for the purpose of collective bargaining, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all such employees for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. CHAIRMAN MILLER, dissenting: I would set aside the May 6, 1970, election on the basis of employee Rufus Shelton's preelection activi- ties. A day or so before the election Shelton told two employees their heads would be beaten if the Union did not get in and on another occasion stated that an em- ployee who had opposed the Union previously better not do so again as he would be killed and his house burned down. At other times during the month before the election, Shelton threatened employees that their heads would be "caved in," their houses burned down, their cars turned over, or bricks thrown through their windows if they did not support union picketing or strike action. All together, eight employees were di- rectly involved with Shelton's threats; these employees did not, in my view, cast their ballots in an atmosphere free of fear or threats of violence. Consequently, when their 8 dubious ballots are added to the 2 the Hearing Officer found of doubtful validity because 2 voters were in the election booth at one time, there were 10 suspect ballots or enough to unsettle directly the Union's majority of 17 without considering what effects Shel- ton's remarks might have had on the voters generally. In this situation, involving as it does election interfer- ence rather than responsibility for unfair labor prac- tices, I would not regard as controlling the answer to the question of whether Shelton was or was not, techni- cally, Petitioner's agent; his lack of agency does not in my view lessen the coercive thrust of his pointedly violent remarks. Consequently, in order to insure that the Board's certification reflects the free, untrammeled choice of a majority of the employees, I would, as stated above, set the election aside and direct that another be 111; Owens-Corning Fiberglas Corporation, 179 NLRB No. 39. held.