Rudy's Farm Co., Inc.

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rudy's Farm Company , Inc. and Amalgamated Meat Cutters & Butcher Workmen of North America, 405, AFL-CIO, Petitioner. Case 26-RC-3759 May 12, 1971 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was con- ducted in the above-entitled proceeding on June 5, 1970, under the direction and supervision of the Re- gional Director for Region 26, among the employees in the appropriate unit. At the conclusion of the balloting, the parties were furnished a tally of ballots which showed that of approximately 177 eligible voters, 171 cast ballots, of which 81 were for and 85 were against the Petitioner. There were five challenged and no void ballots. The challenged ballots were sufficient in num- ber to affect the results of the election. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and, on July 16, 1970, issued and duly served on the parties his Report on Challenges and Objections in which he recommended that three challenges be sustained, that two challenges be overruled, and that inasmuch as the two overruled challenged ballots are not determinative they not be opened and counted. He further recom- mended that the Petitioner's objections be overruled in their entirety. Thereafter, the Petitioner filed timely exceptions to the Regional Director's Report on Challenges and Ob- jections, and a brief in support thereof. On October 29, 1970, the National Labor Relations Board issued a Decision and Order' in which it ordered that Peti- tioner's Objections 1, 2, 3, 6, 7, 8, 9, 10, and 11 be overruled and that a hearing be held for the purpose of taking testimony to resolve the issues raised by Objec- tions 4 and 5.2 Pursuant to the Board's Order a hearing was held on December 1, 1970, before Hearing Officer Michael Dunn. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. On January ' Rudy 's Farm Company, Inc., Case 26-RC-3759 (not printed in NLRB volumes). ' The Petitioner excepted only to the Regional Director's disposition of Objections 4 and 5. 7, 1971, the Hearing Officer issued his report recom- mending that Petitioner's Objection 5 be overruled, and that Objection 4 be sustained. The Employer filed timely exceptions to the Hearing Officer's report and a supporting brief; the Petitioner also filed exceptions to the Hearing Officer's report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds they are free from prejudicial error. They are hereby affirmed. The Board has considered the Hearing Officer's report, the excep- tions and briefs, and the entire record in this case and finds as follows: Objections 4 and 5 involve a speech delivered by William D. Hardison, the Employer's assistant general manager, to 225 assembled employees on the day before the election, June 4, 1970. The Hearing Officer found that Hardison did not make any material misrep- resentations concerning the strike at Frosty Morn or the effects of that strike on Frosty Morn employees (Objection 4); he found that Hardison's comment that the Union had gained absolutely nothing for employees involved in strikes constituted preelection propaganda that employees could reasonably be expected to evalu- ate. He further found that Hardison made no material misrepresentation concerning wage rates at Odom Sau- sage (Objection 5).' We agree with these findings. The Hearing Officer then analyzed the remainder of Hardison's speech and relying on Boaz Spinning Com- pany, Inc., 177 NLRB No. 103, concluded that the effect of the entire speech was to instill in employees a fear of the adverse effects of collective bargaining cou- pled with the implied message of the alleged futility of union representation; he therefore found merit in Ob- jection 4 and recommended it be sustained. The Em- ployer excepts; we agree with the Employer's conten- tion that Hardison's speech constituted lawful permissible campaign propaganda which the em- ployees could evaluate. The speech read by Hardison from a prepared text was approximately 13 pages long. The first two pages describe the mechanics of the election and urge every- one to vote. Hardison then stressed that he neither expected nor would ask the employees to do the Com- pany any favors but rather that, "you should decide ' Although, in directing the hearing, we indicated that we were particu- larly interested in Petitioner's allegations of misrepresentation with respect to Hardison's comments on the effects of the strike at Frosty Morn and the wage rates at Odom Sausage, the hearing was not limited to those issues since it was directed on Objections 4 and 5. We therefore reject the Em- ployer's contention that the Hearing Officer was limited to considering the alleged misrepresentations with respect to Frosty Morn and Odom Sausage. 190 NLRB No. 62 RUDY'S FARM COMPANY, INC. 325 whether to vote for this Union, or against it, purely on the basis of whether or not it will be to your own best interests." Hardison then discussed in a very general way various subjects; among other things he indicated to the employees that the Union was only interested in their money, that Rudy's wage rates and benefits com- pared favorably with unionized plants in the area,' and that unions do do not guarantee job security. In this regard Hardison mentioned a number of unionized plants where jobs had been eliminated and long layoffs had occurred and pointed out that Rudy's had never had a layoff during its entire operation. The aforemen- tioned sections which, in fact, constituted a major por- tion of the speech are, in our view, not only temperate and reasonable but clearly unobjectionable. Nevertheless the Hearing Officer relied on other por- tions of the speech to find it objectionable. Thus, based on the following statements he found that Hardison led employees to believe that they must strike in order to get concessions: If the Union wins this election, all it wins is the right to sit down at the table and talk with us. If the Union were in the plant, there would still be only one way it could try to force us to do anything that we are not able to do or willing to do and that would be by pulling you out on strike. The import of the foregoing is not that the Employer would not bargain in good faith; nor does it misrepre- sent the law. But, in addition, the above excerpt does not give an accurate portrayal of what Hardison said. For the above remark was prefaced by the following: But the simple truth about the ... Union or any other union is that it has no magic powers to make things go the way it wants them to go. Of course it can promise anything, but carrying out its prom- ises is a different matter. When Bob Adams or any other organizer tells you that they are going to come in here and make us do this or the other they are seriously misleading you. Sometimes people have the idea that all they have to do is to vote for a union and then automatically they get higher pay and higher benefits of various kinds. In our opinion Hardison's comments viewed as a whole are little more than a partisan explanation of the realities of collective bargaining. The Hearing Officer then found that, as in Boaz Spin- ning, Hardison informed the employees that the Em- ployer was the fount of all existing and future benefits when he stated: Always, you should bear in mind that it is Rudy's which furnishes your job and your pay- ' It was at this point that Hardison compared the Employer's wage rates with those at Odom Sausage check-not the ... Union. And always you should bear in mind that the ... Union will never furnish you a day's work nor a cent of your pay- check. The next time ... [a] Union organizer tries to tell you what the ... Union can do for you, ask them how many hams or cases of sausage patties they have sold for Neuhoff or Frosty Morn. In our opinion a careful reading of this excerpt, and particularly the second sentence, in the context of the entire speech indicates that Hardison was merely at- tempting to impress upon the employees the fact that the Union would be of no help in obtaining orders or in solving the economic problems involved in keeping the plant in operation. No threat was made, nor do we believe one was intended. In finding the speech objectionable the Hearing Officer also relied on Hardison's references to the fact that the employees did not need a union to obtain benefits that the Employer would give them in any event,' and Hardison's suggestion that the employees would be better off without a union and should vote NO. These statements are nothing more than the ex- pression of the Employer's view that it had treated the employees fairly and would continue to do so, coupled with a request that the employees vote against the Un- ion. In conclusion, it is our opinion that the speech read as a whole did not exceed the bounds of permissible campaign propaganda. The speech, including the state- ments in issue, was noncoercive and temperate, and in our opinion represents nothing more than a legitimate assertion of the Employer's views. Contrary to the Hearing Officer's finding we do not believe the speech would tend to instill in employees a fear of the adverse effects of collective bargaining coupled with an implied message of the alleged futility of union representation. Accordingly, we shall overrule Objection 4, and, as the Petitioner has failed to secure a majority of the valid ballots cast, certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of valid votes has not been cast for Amalgamated Meat Cutters & Butcher Workmen of North America, Local 405, AFL-CIO, and that said labor organization is not the exclusive representative of the employees in the unit found appropriate within the meaning of Section 9(c) of the Act. Hardison said It is our hope and our intention to keep your earnings on a level with comparable plants in the meat packing industry You can count on that without having to pay dues to accomplish it